Gujarat High Court
Divyang Jayantilal Mevada vs Heirs Of Jivaji Mohanji Thakor on 1 December, 2021
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/CA/2057/2020 ORDER DATED: 01/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 2057 of 2020
In
F/SECOND APPEAL NO. 17911 of 2020
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DIVYANG JAYANTILAL MEVADA
Versus
HEIRS OF JIVAJI MOHANJI THAKOR
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Appearance:
MR. PERCY KAVINA, SENIOR COUNSEL WITH MR RUTVIJ M
BHATT(2697) for the Applicant(s) No. 1
for the Respondent(s) No. 1,3,3.8
DS AFF.NOT FILED (N)(11) for the Respondent(s) No.
2.1,2.2,2.3,2.4,2.6,2.7
JIGESH K SHAH(7377) for the Respondent(s) No. 3.1,3.2,3.3,3.4
MR. D.C. DAVE, SENIOR COUNSEL WITH MR JF MEHTA(461) for
the Respondent(s) No. 3.6,3.7
MR. MEHUL SHAH, SENIOR COUNSEL WITH MR.BHANUKUMAR B
AGRAWAL(10031) for the Respondent(s) No. 3.9
MR. ANSHIN DESAI, SENIOR COUNSEL WITH MR.PARTH
CONTRACTOR(7150) for the Respondent(s) No. 1.3,1.4
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 1.2
NOTICE SERVED BY DS(5) for the Respondent(s) No.
2.5,3.5,3.8.1,3.8.2,3.8.3
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 1.1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/12/2021
ORAL ORDER
1. This is an application seeking grant of leave to the Second Appeal under Section 151 /w. Section 96 of the Code of Civil Procedure, 1908 challenging the order passed by the 3 rd Additional District Judge (Rural), Ahmedabad in Regular Civil Page 1 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 Appeal No. 43 of 2007 dated 20.03.2020.
2. The facts leading to the filing of the present application as stated by the applicant are summarized thus:
2.1. It is the case of the applicant that the applicant is an agriculturist and owner of land bearing Survey No. 761/1+2 undivided portion, 761/3/1, 761/3/2 and 76/5 admeasuring 11 acres and 5 gunthas of land of Village: Naroda, Tal. & Dist.: Ahmedabad.
It is the case of the applicant that grandfather of the applicant i.e. late Jethabhai Dalabhai Mevada desirous of purchasing the above- referred agricultural land and entered into negotiations with the respondent no.2 - Sakalchand Ishvarbhai Patel (the joint owner of the lands) and on due verification with regard to the details of the land question, it came to the knowledge of the grandfather of the applicant that respondent no.2 - Sakalchand Ishvarbhai Patel had earlier executed one agreement to sale with Jivanbhai Ambalal Patel of Unja for the said lands in the year 1982 with possession. Since then the possession of the land was handed over to the kith and keen of Jivanji Patel i.e. Gabhaji and since then Gabhaji was the caretaker of the above-referred land.
2.2. It is further submitted that the parties have arrived at an understanding and the possession of the above-referred land was handed over by Gabhaji to the grandfather of the applicant herein and the applicant's grandfather made Bana-payments to the respondent no.2 - Sankalchand Patel, and on the basis of the understanding, the electric bill of the land in question was paid by the applicant's family. In such circumstances, the respondent no.1 Page 2 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 instituted the suit being Special Civil Suit No. 269 of 1994, which came to be dismissed, against which the First Appeal No. 565 of 2001 came to be filed before this Court by the respondent no.1 and subsequently, the same came to be transferred to the District Court bearing Regular Civil Appeal No. 43 of 2007. The District Court passed the order in Regular Civil Appeal No. 43 of 2007 by quashing and setting aside the judgment passed by the Civil Judge in Special Civil Suit No. 269 of 1994 and allowed the suit filed by the respondent no.1 herein. The respondent no.2 - Sankalchand Patel on the basis of the transaction entered into between the father of the applicant and the respondent no.2, the Power of Attorney came to be executed by the respondent no.2 in favour of two persons, viz. Dahyabhai Dalabhai Mevada and Nitaben Jayantilal Mevada. Accordingly, the heirs of respondent no.2 acknowledged the payments made by the grandfather of the applicant and also accepted by the respondent no.2. Subsequently, pursuant to the above-referred transaction, a registered sale deed came to be executed by the power of attorney holder in favour of Jethabhai Dalabhai Mevada.
2.3. The grandfather of the applicant expired on 11.11.2000 and with a view to grab the lands, the respondent no.2 issued a public notice for title clearance. The said notice came to be objected by the applicant by filing Regular Civil Suit No. 667 of 2001. It is further stated that the respondent no.2 filed Special Civil Suit No. 347 of 2001, inter-alia, challenging the sale deed executed in favour of the grandfather of the applicant. Considering the pending Special Civil Suit No. 347 of 2001, the applicant was in Page 3 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 possession of the suit land and the same came to be confirmed on the basis of Panchnama, hence, status-quo came to be granted qua the suit land and the possession of the applicant is continued since 1993 and has been in possession since then. The Special Civil Suit No. 347 of 2001 came to be withdrawn unconditionally, by the heirs of the respondent no.2. The respondent no.2 entered into the sale deed with the respondent no.1 by registered sale deed.
2.4. The father of the applicant, viz. Jayantibhai Mevada purchased the adjacent land bearing Survey No. 761/4 and also purchased the undivided share of Survey No. 761/1+2 paiki which falls in F.P. No. 60. The said lands were divided into two parts forming Final Plot Nos. 60 and 61. It is further submitted that, pending both the proceedings of the suit, the respondent no.2 expired in the year 2010.
2.5. It is stated that the grandfather of the applicant executed a will in favour of the applicant, and accordingly, name of the applicant came to be mutated through entry no. 13127. It is stated that in view of the fact that family of the respondent no.2 had already executed declaration in the year 1996 in favour of the applicants family, the Special Civil Suit No. 347 of 2001 came to be withdrawn unconditionally by the heirs of the respondent no.2. Thereafter, the applicant moved an application for grant of NA permission before the Competent Authority for all the lands including the additional lands purchased by the applicant's father. The said permission came to be granted by the Competent Authority. The heirs of the respondent no.1 challenged the grant of Page 4 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 NA permission before the Special Secretary Revenue Department (SSRD) by application bearing No. MVV/BKP/AMD/13/ 2017 against the applicant. The said application came to be dismissed by the SSRD. The order passed by the SSRD came to be challenged by the respondent no.1 by filing an Appeal before the Appellate Court being Regular Civil Appeal No. 43 of 2007. In the said appeal, the applicant was not joined as party respondent. It is stated that the respondent no.1 on the basis of the sale executed in the year 1994, moved an application for inserting the sale transaction by Entry No. 11894 on 03.04.2000. The said entry came to be challenged by the respondent no.2 and the appeal came to be allowed in favour of the respondent no.2 and the Entry No. 11894 came to be cancelled. The said entry came to be challenged by the heirs of the respondent no.1 after a period of 16 years.
2.6. The applicant pursuant to the N.A. permission has applied before the Ahmedabad Municipal Corporation (AMC) for permission to use the said land as party plot. The said permission came to be granted and the applicant is using the said plot as a party plot. It is further stated that, there was a proposal of redevelopment by Town Planning Scheme in Naroda for widening road and the applicant has already consented for widening road as per the new TP Scheme and surrendered the land. The applicant is in possession of the land in question prior to the sale transaction impugned in Regular Civil Suit No. 269 of 1994. The applicant is therefore necessary and inevitable party in the present proceedings and hence, approached this Court by way of the present leave to appeal.
Page 5 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022C/CA/2057/2020 ORDER DATED: 01/12/2021
3. Heard Mr. Percy Kavina, the learned Senior Counsel assisted by Mr. Rutvij M. Bhatt, the learned counsel appearing for the applicant, Mr. Anshin Desai, the learned Senior Counsel assisted by Mr. Parth Contractor, the learned counsel appearing for the respondent no.1.3 and 1.4, Mr. D.C. Dave, the learned Senior Counsel assisted by Mr. J.F. Mehta, the learned counsel appearing for the respondent nos. 3.6 and 3.7, Mr. Mehul Shah, the learned Senior Counsel assisted by Mr. Bhanukumar B. Agrawal, the learned counsel appearing for the respondent no.3.9, Ms. Trusha K. Patel, the learned counsel appearing for the respondent no.1.2, Mr. Jignesh K. Shah, the learned counsel appearing for the respondent Nos. 3.1 to 3.4.
SUBMISSIONS ON BEHALF OF THE APPLICANT :
4. Heard Mr. Percy Kavina, the learned Senior Counsel assisted by Mr. Rutvij M. Bhatt, the learned counsel appearing for the applicant.
4.1. It is submitted by the applicant that the respondent no.2 entered into a sale deed with the applicant on 03.05.1999. The applicant is in possession of the suit property since 1993. The respondent no.2 entered into an agreement to sale with the respondent no.1, 3 and 4. It is further submitted by Mr. Kavina, the learned Senior Counsel that the sale transaction between the respondent no.2 - Sakalchand Patel and respondent nos.1, 3 and 4 are void. The registered agreement to sale dated 02.09.1989 and registered sale deed dated 21.09.1993 which was executed by the respondent no.2 - Sankalchand in favour of the respondent nos.1 Page 6 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 and three others is void, since the land was under the Urban Land Ceiling Act. He submitted that when the transaction itself was void, the suit was rightly rejected by the trial Court and since the Appellate Court allowed the appeal filed by the original plaintiff, the applicant herein is constrained to approach this Court, as he is the affected party. He submitted that the applicant is affected and necessary party, however, the respondents though were aware of the fact regarding the transaction of the applicant with the predecessor in title and ignoring the fact that the applicant is in possession of the land prior to the alleged sale deed executed between the respondent no.1 and other respondents. He further submitted that the Deputy Collector / Special Officer (ULC) by an order 30.03.1995, the competent authority had declared the sale as void.
4.2. Mr. Kavina, the learned Senior Counsel further submitted that the trial Court rightly dismissed the suit filed by the respondents, considering the various aspects. He submitted that, under such circumstances, the present applicant, a person aggrieved be permitted as a party respondent in the Second Appeal.
SUBMISSIONS ON BEHALF OF RESPONDENT NOS.1.1 TO 1.3 :
5.1. Ms. Trusha Patel, the learned counsel appearing for the respondent nos.1.1 to 1.3 submitted that the application seeking leave to defend is based on the documents annexed to the said application, which do not form a part of the record of the suit or First Appeal. She submitted that any documents not forming the part of the record of the Courts below cannot be relied upon in Page 7 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 Second Appeal and merely annexing photocopies with the application, without producing original documents, without getting them exhibited, without proving the said documents and their contents, without examining relevant witnesses to prove those documents and their contents and without offering himself for cross- examination, the photocopies of the documents, which are unregistered and not even notarized and not duly stamped, could not be relied upon at the stage of Second Appeal. Ms. Patel, the learned counsel further submitted that the application is not accompanied by an application for production of additional evidence, and therefore, the documents produced alongwith the present application not forming the part of the record of the trial Court and Appellate Court be discarded and the same may not be taken into consideration while deciding the application.
5.2. Ms. Patel, the learned counsel further submitted that the registered agreement to sale dated 02.09.1989 and registered sale deed dated 21.10.1993 which was executed by Sankalchand Patel - respondent no.2 herein in favour of Jivaji Mohanji Thakor and three others i.e. defendant no.2 ABC, whereas, the applicant has based his claim on the basis of the sale deed dated 03.05.1999. She further submitted that Section 48 of the Transfer of Property Act provides for priority of rights created by earlier transfer. Such being settled legal position when the property is already sold by a registered sale deed, the subsequent transaction would be null and void.
5.3. Ms. Patel, the learned counsel submitted that, on 09.12.1994, Special Civil Suit No. 269 of 1994 was filed and on the Page 8 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 very same day, the ad-interim order of status-quo was passed by the trial Court. On 15.07.1996, a purshis came to be filed by the applicant contending that since the ad-interim order of status quo was continued for about two years, the same be continued till final disposal of the suit and the application for temporary injunction came to be disposed of. On 31.08.1996, a purshis was filed even on behalf of the defendant no.1 - vendor that the defendants were ready to maintain status-quo till final disposal of the suit. Accordingly, an order was passed on 31.08.1996 recording that purshis vide Exh.81 and 88 were given as per which the application for temporary injunction was ordered to be disposed of with the suit. Despite that, on 03.05.1999, a sale deed seems to have been executed in favour of the appellant. On 15.04.2000, judgment was pronounced by the trial Court, till which date, the parties were duty bound to maintain status-quo. She submitted that from the above facts, it is abundantly clear that the sale deed on which the applicant has based his claim was executed in utter disregard to the orders passed in Special Civil Suit No. 269 of 1994 and the same can be said to be void.
5.4. Ms. Trusha Patel, the learned counsel submitted that the applicant / his predecessor are not bona-fide purchasers. The agreement to sale and sale deed executed in favour of the plaintiff were registered document, of which the predecessor of applicant deemed to have knowledge and they entered into a transaction during the pendency of the suit, when the parties were supposed to maintain status-quo. She further submitted that, predecessor of the applicant has got the sale deed executed in his favour during the pendency of the suit, the principles of 'lis pendence' would govern Page 9 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 the field. The plaintiff had no obligation to join him in his suit against original owner and the decree that may be passed against the original owner still binds him. She further submitted that, it cannot be said that the applicant was not aware about the pendency of the suit or the First Appeal. She submitted that the applicant has deliberately not stated that for all these years, he and / or his predecessor had no knowledge about pendency of the suit or First Appeal. She submitted that, they were aware of the proceedings since day one and as the dates narrated herein-above, they entered into a transaction with open eyes. She further submitted that the pendency of the civil proceedings were declared in the revenue proceedings also. She submitted that, on 24.07.2017, in a reply filed by the appellant in No. MVV/BKP/ AMD/13/2017, the knowledge about pendency of appeal before the District Court is established. Even in the order dated 05.09.2017 in No. MVV/BKP/ AMD/13/2017, the submissions made by the appellant in respect of the Civil Suit and First Appeal have been taken note of. Admittedly, the appellants were aware about the pendency of the suit proceedings, however, they had chosen not to get themselves impleaded in the First Appeal, which was pending before the District Court and now, when the decree is passed against their predecessor, the applicant has approached this Court complaining of the fact that they had interest in the dispute and still was not joined. She further submitted that, it is a mala-fide and belated action on the part of the appellant is not permissible, that too, at an advantage stage of Second Appeal. She further submitted that, Second Appeal even otherwise cannot be entertained unless it involves a substantial question of law, no such question arises in Page 10 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 the captioned Appeal, and hence, granting of leave would be a futile exercise. She further submitted that, no question has been framed by the applicant in the memo of Second Appeal. She submitted that, in view of the above, the application filed by the applicant is required to be dismissed.
5.5. She further submitted that, to the contentions raised by the applicant that the competent authority had held the transaction to be void. She submitted that the defendant had relied upon the order passed by the Deputy Collector under the ULC Act. She submitted that, the plaintiff was never confronted with such document at the time of cross-examination. She submitted that the documents and its contents are not true. She further submitted that the authority under the ULC Act has issued certificate that the land is not declared Excess Vacant Land till the ULC Act got repealed, and hence, possession is not taken over. She further submitted that, when the land is not declared as Excess Vacant Land, the question of cancelling sale deed under Section 5 would not arise and passing of such order is not possible as the land is not declared Excess. She further submitted that, if genuinely the order was passed, there would have been a notice to Jivaji and other purchasers. She further submitted that, no issue with regard to the ULC order was framed by the Court below with regard to the validity of the sale under the ULC Act. She further submitted that, there is no pleading or proof that possession was taken over under the ULC Act and the certificate produced shows that the possession is not taken over under the ULC Act and the land even is not declared as surplus. Further, ULC authority cannot decide the title of the land in Page 11 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 question. She submitted that, the alleged order dated 30.03.1995 passed in ULC/U7-1/Naroda appears to be a fraudulent one, since, Jivaji was neither served with the notice nor was heard and communicated with the so called order, as such there is a noting / letter dated 12.01.1995 in the record of ULC Case, by which Sankalchand Patel was intimated that since the permission under Section 20(1) of ULC Act was granted, the sale deed was between the agriculturists, the notice dated 22.12.1994 was withdrawn. Thus, apparently, behind the back of Jivaji, said persons had in collusion with each other and in connivance, got up the fictitious order. She lastly submitted that the application is devoid of any merits and the same deserves to be dismissed.
SUBMISSIONS OF BEHALF OF THE RESPONDENT NO. 1.4 6.1. Mr. Anshin Desai, the learned Senior Counsel appearing on behalf of the respondent no.1.4 vehemently denied the allegations made by the applicant and stated that the present application seeking leave to challenge the judgment and order dated 20.03.2020 be dismissed at the threshold and no reliefs as prayed for in the said application be granted. Mr. Desai, the learned Senior Counsel submitted that the applicant has not approached this Court with clean hands and there is gross suppression of material facts by the applicant in the present application. He submitted that the applicant has deliberately not disclosed the fact that on 21.10.1993, a sale deed was executed by respondent no.2 in favour of respondent nos.1, 3.8 and 3.9 herein and the same is duly registered vide registration No. 2364 on 31.01.1994. He submitted that the applicant has suppressed the fact that he was aware with Page 12 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 regard to the pendency of the Special Civil Suit No. 269 of 1994 as well as Regular Civil Appeal No. 43 of 2017 (Old No. - First Appeal No. 565 of 2000), wherein, the legality and validity of the sale deed bearing registration No. 2364 was under challenge. He submitted that the applicant can be said to be a fence-sitter and deliberately choose not to take any legal actions for being impleaded in the Special Civil Suit No. 269 of 1994 and / or Regular Civil Appeal No. 43 of 2017 (Old No. - First Appeal No. 565 of 2000) and now in the year 2020, the applicant has approached this Court seeking leave to challenge the impugned order, only because the Regular Civil Appeal is allowed and the impugned order is passed in favour of the respondent no.1.4.
6.2. Mr. Anshin Desai, the learned Senior Counsel states that the applicant had not taken any steps for his rights, if any, for a period of about 25 years i.e. from 1994 to 2020. He submitted that the applicant's prayer for seeking leave to challenge the impugned order passed by the Court below is required to be dismissed on the ground as stated below:
(I) The sale deed dated 21.10.1993 is duly registered on 31.01.1994 vide registration no. 2364. (II). On 03.04.2000, mutation entry No. 11894 came to be mutated recording the execution of the registered sale deed dated 21.10.1993 and the said entry came to be certified on 20.05.2000. (III). The sale deed alleged to have been executed in favour of the grandfather of the applicant itself qualifies the pendency of the Special Civil Suit No. Page 13 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 269 of 1994.
6.3. Mr. Anshin Desai, the learned Senior Counsel further submitted that the respondent no.2 - Sakalchandbhai Patel filed Special Civil Suit No. 347 of 2001 before the Civil Judge, Ahmedabad (Rural) on 03.12.2001 against the applicant and others praying for cancellation of sale deed dated 03.05.1999 registered on 24.08.2000 vide registration No. 3235 alleged to have been executed by the so called power of attorney holder of the respondent no.2 in favour of the applicant. He submitted that in the said suit: (a) there is no specific declaration of the registered sale deed dated 21.10.1993, (b) fact of pending disputes related to title of subject land is also specifically mentioned, (c) There was specific allegation by the respondent no.2 that the sale deed dated 03.05.1999 is executed on the basis of forged power of attorney by the applicant,
(d) the applicant is duly represented in the above-referred suit. It therefore cannot be said that the applicant was unaware of the pending proceedings relating to the title of the subject land.
6.4. Mr. Desai, the learned Senior Counsel submitted that a declaration deed bearing registration No. 231 came to be executed by the legal heirs of respondent no.2 in favour of the applicant and his family members on 30.12.2012, wherein, all the legal heirs of the respondent no.2 have specifically admitted the fact about execution of sale deed dated 21.10.1993. He further submitted that, there is specific averment that the registered sale deed dated 21.10.1993 needs to be cancelled and the legal heirs of the respondent no.2 were ready and willing to sign such proceedings.
Page 14 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022C/CA/2057/2020 ORDER DATED: 01/12/2021 6.5. Mr. Desai, the learned Senior Counsel submitted that applicant was well aware of the registered sale deed dated 21.10.1993 and pendency of Regular Civil Appeal No. 43 of 2017 (Old No. - First Appeal No. 565 of 2000), however, the applicant has consciously and willingly chosen to sit on the fence, which can be evident from the following:
(a) On 03.02.2016, the applicant filed an application before the Collector, inter-alia, seeking N.A. permission and in the said proceedings, on 22.08.2013, father of the respondent no.1.4 filed detail objections, wherein, he had specifically disclosed the fact of execution of registered sale deed dated 21.10.1993 in his favour.
(b) The Collector, Ahmedabad by an order dated
22.03.2016 granted N.A. permission to the applicant. Being aggrieved by the aforesaid order passed by the Collector, Ahmedabad, the respondent no.1/4 and others filed Revision application being No. MVV/BKP/ AMD/13/2017 before the Special Secretary Revenue Department (SSRD), wherein, the applicant was joined as respondent no.15, the respondent no.1/4 and others have specifically mentioned that they are owner of the subject land by virtue of registered sale deed dated 21.10.1993 and since then, they are in possession of the suit property and fact of pendency of Regular Civil Appeal No. 43 of 2017 (Old No. - First Appeal No. 565 of 2000) was also declared.
Page 15 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022C/CA/2057/2020 ORDER DATED: 01/12/2021 6.6. Mr. Anshin Desai, the learned Senior Counsel further submitted that the vide order dated 05.09.2017, the Special Secretary Revenue Department dismissed the Revision Application No. 13 of 2017. He further submitted that the order passed by the SSRD clearly recorded that 'the applicant has stated that he was aware of pendency of Regular Civil Appeal No. 43 of 2017 (Old No.
- First Appeal No. 565 of 2000)' and that he was not party in said proceedings, and further that admittedly he was not a party in the Special Civil Suit No. 269 of 1994, the outcome of the appeal and the suit would not bind the applicant. Mr. Desai, the learned Senior Counsel further submitted that the order of the SSRD came to be challenged before this Court by way of Special Civil Application No. 20191 of 2017, in which the applicant herein was joined as respondent no.7 and the fact of pendency of appeal and interim order passed therein was also declared. By order dated 11.12.2017, the Special Civil Application came to be dismissed, against which the Letters Patent Appeal No. 276 of 2017 came to be filed before this Court, wherein, the applicant was joined as respondent no.6 and the fact of pendency of appeal and interim order passed therein was also declared.
6.7. Mr. Anshin Desai, the learned Senior Counsel submitted that in view of the above submissions, the applicant was aware of the sale deed as well as pendency of suit and appeal. The applicant has chosen to sit on the fence and never challenge the sale deed nor seek to implead himself in the suit or in the First Appeal, and now the applicant cannot be permitted to challenge the order passed in the First Appeal by the Court below. He further submitted Page 16 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 that in view of the above, the present Leave to Appeal deserves to be dismissed on this ground alone.
6.8. Mr. Anshin Desai, the learned Senior Counsel submitted that the applicant is seeking relief on the basis of purported sale deed, which came to be executed in blatant defiance of the order passed by the Court. He further submitted that the order of status- quo came to be passed in Special Civil Suit No. 269 of 1994 on 09.12.1994. By order dated 31.08.1996 passed in Special Civil Suit No. 269 of 1994, parties were directed to maintain the status-quo till the final disposal of the suit. On 15.04.2000, the Special Civil Suit No. 269 of 1994 came to be finally decided and the parties were directed to maintain the status-quo till 15.04.2000. The sale deed dated 03.05.1999 which came to be executed by the so called power of attorney holders of the respondent no.2 in favour of grandfather of the applicant in clear breach of the order of the status-quo granted by the Civil Suit in Special Civil Suit No. 269 of 1994. He submitted that the sole basis of the case of the applicant is a document which came to be executed in defiance of the orders passed by the Court below. He lastly submitted that the present application may not be entertained and submitted the same without prejudice to the aforesaid submissions, in view of the following:
(a) The sale deed alleged to have been executed in favour of the grandfather of the applicant is null and void.
(b) The claim of the applicant is even otherwise barred by law of limitation.
(c) The applicant cannot be permitted to get relief Page 17 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 indirectly which he cannot get directly.
6.9. Mr. Desai submitted that, in view of above, this Court may not entertain the application filed by the applicant herein, it being devoid of any merits and therefore, the same may be dismissed in limine.
SUBMISSIONS ON BEHALF OF RESPONDENT NOS.3.6 AND 3.7 :
7.1. Mr. D.C. Dave, the learned Senior Counsel appearing for Mr. J.F. Mehta, the learned counsel appearing for the respondent nos.3.6 and 3.7 vehemently opposed the application filed by the applicant and submitted that the issue involved in the subject matter of the suit was execution of the sale deed and if the applicant was aggrieved and according to the applicant, if there is a subsistence right of the applicant, which affected the right of the applicant adversely, the applicant was in complete knowledge of the proceedings of the court below as well as proceedings of the Appellate Court. It was open for the applicant to challenge the same within the period of limitation in accordance with law. He further submitted that there is a registered sale deed in favour of the respondents and if the applicant is claiming his right by a registered sale deed of 1999, even otherwise, it is well settled law that the sale deed in prior point of time would prevail and the second sale deed would be void in eye of law. He lastly submitted that the present application being devoid of any merits, the present application be dismissed in limine.
Page 18 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022C/CA/2057/2020 ORDER DATED: 01/12/2021 ANALYSIS: 8.1. The applicant- Divyang Jayantibhai Mevada has
preferred this Application seeking leave to appeal with the following prayers, which are produced thus:
"(A). Your lordships be pleased to admit and allow this application and grant the leave, and further direct the registry to register the second appeal against the judgment and order dated 20.03.2020 passed by Ld. 3rd Additional District Judge, Ahmedabad, (Rural) in Regular Civil Appeal No. 43/2007 in the interest of justice.
(B). Your Lordships pending hearing and final disposal of this application be pleased the parties to maintain status quo with regard to the judgment passed by the learned Appellate Court in Regular Civil Appeal No. 43 of 2007."
8.2. The Hon'ble Supreme Court in the case of Jatan Kumar Golch Vs. Golcha Properties Private Ltd . reported in 1970(3) SCC 573 held that "it is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leaves can be granted if he would be prejudicially affected by the judgment."
8.3. The present Second Appeal arising out of judgment and decree passed in Civil Appeal No. 43 of 2007 by 3 rd Additional & District Judge, Ahmedabad (Rural). The Special Civil Suit No. 269 of 1994 was instituted by the plaintiff i.e. heirs of Jivaji Mohanji Thakor for a declaration that sale deed dated 21.10.1993 executed Page 19 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 by defendant no.1 - Sakarchand Patel in favour of plaintiff be declared as legal and valid and that plaintiff is entitled to share in the suit land. The suit came to be dismissed by the trial Court by judgment and decree dated 15.04.2000.
8.4. Being aggrieved by the aforesaid judgment and decree, the plaintiff filed the Appeal, wherein, the 3 rd Additional District judge, Ahmedabad (Rural) has allowed the appeal by an order dated 20.03.2020 and held as under:
"It is hereby declared that Sale Deed dated 21.10.1993 (Ex.116) executed by defendant No.1 Sankarchand Ishwarbhai Patel in favour of plaintiff and defendant nos. 2 A, B, C is valid, and plaintiff is having ¼ share in suit land. The defendants are restraining from cause any loss to plaintiff's right over the suit property i.e. lands bearing Survey No. 761 part 1 and 2 admeasuring 13456 Sq. Mtrs. paiki undivided ½ land and Survey No. 761 part 3/1 admeasuring 2630 Sq.Mtrs., Survey No. 3/2 admeasuring 16795 Sq.Mtrs. and Survey No. 761 part 5 admeasuring 21550 Sq.Mtrs. totaling acre 11.5 Guntha and should not sell it out, should not mortgage it, should not gift it, and they should not disburse the suit properties in any manners either personally or even through their men, agents and etc. permanently. Respondents do pay cost to the appellants.
Decree be drawn accordingly.
Record and proceedings of Regular Civil Suit No. 269/1994 is hereby order to be sent back to the lower court."
8.5. The applicant in para-1 states as under:
"The appellant is an agriculturist. Appellant is Page 20 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 owner of the land bearing survey no. 761/1+2 undivided portion, 761/3/1, 761/3/2, 7/5 admeasuring 11 acres and 5 guntha's of land prior to the institution of Suit no. 269/1994."
8.6. The applicant in para-3 states as under:
"The applicant submits that appellant being seriously aggrieved by the judgment as the learned District Court has erred in coming to conclusion that the heirs of respondent no.1 are entitled to 1/4th portion of the lands on the basis of sale executed by the father of the respondent no.1. Not only that the heirs of respondent no.1 has invited judgment by suppressing material facts that they have already contested proceedings against the subsequent owner with regard to the NA permission of the land and the said application has been dismissed and attained finality against the contesting respondents (original plaintiff) of Special Civil Suit No. 269/1994 and present appellant."
8.7. The applicant in para-4 states as under:
"The applicant respectfully submits that the applicant has filed this Civil Application for leave for filing the Second Appeal against the order /judgment passed by 3rd Additional District Judge, Ahmedabad (Rural), in Regular Civil Appeal No. 43/2007 dated 20.03.2020, on account of fact that applicants is in possession of the said lands prior to the alleged sale deed and Special Civil Suit No. 269/1994."
8.8. After indicating the history of how the applicant came in possession of the land in paragraph 5(j) applicant states as under:
"The applicant submit that accordingly the possession Page 21 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 of land in question was handed over to the grandfather of the applicant prior to the sale deed executed by the respondent no.1 and other respondents of Special Civil Suit No. 269/1994 (subject matter of the second appeal). Accordingly in addition to possession receipt and possession agreement also came to be executed confirming the possession and understanding made earlier...."
8.9. The applicant in the memo of the application, in paragraph 5(S) states as under:
"The applicant submit that pursuant to registered sale the name of grandfather of the applicant came to be mutated in the revenue records vide entry no. 13125. Accordingly in light of the death of the grandfather of the applicant names of heirs were mutated vide entry no. 13126. The applicant submits that as the grandfather of the applicant duly a executed a will in favour of the applicant hence name of the applicant came to be mutated on the basis of the will though entry no. 12127...."
8.10. The applicant in the memo of the application, in paragraph 6 it is further retreated as under:
".....that the applicants is in possession of land in question prior to the sale transaction impugned in the Regular Civil Suit No. 269/1994. The applicant in necessary and inevitable party in the proceedings hence the applicant has approached this Hon'ble High Court by way of this leave to Second Appeal. Moreover the respondent no.1 was in knowledge of all glaring facts of the case however has not choose to join the applicant as necessary party and invited judgment by suppressing facts and misjoinder. It is miserable to note even from date of original Special Civil Suit No. 269/1994, till date there is not a single document to satisfy the conscious of the court Page 22 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 that the possession of land was with the respondent no.1."
8.11. Therefore, it is the case of the applicant that he is in possession of the land for which decree has been passed pursuant to the sale deed dated 21.10.1993 in Regular Civil Appeal No. 43 of 2007. The Appellate Court has not passed decree for possession in favour of plaintiff.
8.12. The Hon'ble Supreme Court in case of V.N.Krishna Murthy & Anr. Vs. Sri Ravi Kumar & Ors. , reported in AIR 2020 SC 4038 the Court in Para 20 has laid down the test to find out when it would be proper to grant leave appeal to a person not a party to a proceedings against the decree or judgment passed in such proceedings in following words:
"Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think 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. We think that 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."
8.13. In the aforesaid judgment the Hon'ble Apex Court has discussed as to who can be said to be person aggrieved:
Page 23 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022C/CA/2057/2020 ORDER DATED: 01/12/2021 "15. Section 96 and 100 of the Code of Civil Procedure provide for preferring an appeal from any original decree or from decree in appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. However, it is 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 with the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the Appellate Court.
Reference be made to the observation of this Court in Smt. Jatan Kumar Golcha v. Golcha Properties Private Ltd. (1970) 3 SCC 573:
"It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the Judgment."
16. This Court in State of Punjab and Ors. v.
Amar Singh and Anr. (1974) 2 SCC 70 while dealing with the maintainability of appeal by a person who is not party to a suit has observed thus:
"Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410 have laid down the Rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.Page 24 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022
C/CA/2057/2020 ORDER DATED: 01/12/2021
17. In Baldev Singh v. Surinder Mohan Sharma and Ors. (2003) 1 SCC 34, this Court held that an appeal under Section 96 of the Code of Civil Procedure, would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. While dealing with the concept of person aggrieved, it was observed in paragraph 15 as under:
"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.
18. In A. Subash Babu v. State of A.P. and Anr. (2011) 7 SCC 616, this Court held as under:
"The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant's interest and the nature and extent of the prejudice or injuries suffered by him."
19. The expression 'person aggrieved' does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji v. Home Insurance Co. of New York (1974) 2 SCC 387 and State of Rajasthan and Ors. v. Union of India and Ors.)
20. In Srimathi K. Ponnalagu Ammani v. The State of Madras represented by the Secretary to the Revenue Department, Madras and Ors.: 66 Law Weekly 136, this Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding Page 25 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 against the decree or judgment passed in such proceedings in following words:
"Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think 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. We think that 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."
8.14. Applying the above test the applicant can neither said to be aggrieved person nor the applicant is bound by the judgment and decree passed by the Appellate Court because there is no decree for possession in favour of the plaintiff. The judgment of the Appellate Court is binding between the parties and it cannot bind the present applicant. It therefore, cannot be held that the judgment and decree of the Appellate Court adversely affect the interest of the applicant. The Appellate Court does not decide the right title and interest of the present applicant nor of the possession if the applicant is in possession of the suit property.
8.15. After hearing of the present Application was concluded, the applicant submitted an affidavit with supporting documents having direct impact on the present application as well as the Second Appeal, since according to the applicant, the documents pertain to the same piece of the land in dispute/ question. The Page 26 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022 C/CA/2057/2020 ORDER DATED: 01/12/2021 additional affidavit filed on behalf of the applicant was permitted to be taken on record. In view of this Court, there was an order of status-quo in Regular Civil Suit No. 507 of 1989. However, it appears that no steps have been taken to void the sale or the sale being in breach of the interim order of the status-quo passed in Regular Civil Suit No. 507 of 1989. The sale deed dated 21.10.1993 in favour of the plaintiff is not declared as invalid.
9. In view of above, the present applicant cannot be said to be a person aggrieved and the present application for grant of leave to Appeal is required to be dismissed and the same is dismissed accordingly. Notice is discharged. No order as to costs.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 27 of 27 Downloaded on : Wed Jan 12 06:25:41 IST 2022