Gujarat High Court
Bhagvatiprasad Shashikant Dave & vs Ishak Juma Jat & 3 on 7 March, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/6647/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6647 of 2013
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BHAGVATIPRASAD SHASHIKANT DAVE & 1....Petitioner(s)
Versus
ISHAK JUMA JAT & 3....Respondent(s)
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Appearance:
MR KIRTIDEV R DAVE, ADVOCATE for the Petitioner(s) No. 1 - 2
BALKRISHNA ACHARYA, ADVOCATE for the Respondent(s) No. 3 - 4
MR HAJARE AGP for the Respondent(s) No. 2
MRS PC FERNANDEZ, ADVOCATE for the Respondent(s) No. 3 - 4
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 07/03/2014
ORAL ORDER
1. In this petition the petitioners have prayed, inter alia, that:-
"23 (b) Your Lordships be pleased to issue appropriate writ of certiorari or any other writ order or direction holding that the order of the Ld. 2nd Additional Senior Civil Judge, Bhuj below exh.22 and 27 dtd. 4.2.2013 in Regular Civil Suit No. 258 of 2012 is bad in law, illegal and so it be quashed and set aside. Your lordships be further pleased to order that the suit be declared disposed of as withdrawn."
2. The petitioners, who are original defendants in Regular Civil Suit No. 258 of 2012 have brought under challenge the common order dated Page 1 C/SCA/6647/2013 ORDER 4.2.2013 passed by learned trial Court below Exhibit 22 and Exhibit 27 whereby learned trial Court, while allowing the application Exhibit-22 filed by present respondent Nos. 3 and 4 permitted them to be impleaded as party defendants in the suit and disallowed the application Exhibit 27 filed by the plaintiff to withdraw the suit and instead passed direction to treat the suit as representative suit under Order 1 Rule 8(2).
2.1 It is pertinent that the respondent No.1 i.e. original plaintiff, who had filed the application (Exhibit 27) which came to be rejected by the impugned common order passed by the learned trial Court, has not taken out any proceedings but it is the original defendants who have taken out present petition.
3. Following discussion of relevant facts would demonstrate two aspects;
(i) The petition suffers from vice of suppression Page 2 C/SCA/6647/2013 ORDER of facts; and
(ii) though the Government i.e. respondent No.2 ought to have actively participated in the proceedings, it has, for unexplained reasons, remained passive in the proceedings so much so it has not even bothered to file affidavit placing correct facts on record, leaving aside the apparent indifference towards order passed by learned trial Court.
4. The facts involved in and leading to the submission of present petition can be summarized thus:-
4.1 The petitioners claim that they have purchased certain parcels of land by virtue of sale deed executed between them and the vendor on 26.6.2007.
4.2 Some time after the said transaction was executed, present respondent No.1 plaintiff filed a suit being Regular Civil Suit No.258 of 2012 assailing the said transaction on diverse Page 3 C/SCA/6647/2013 ORDER grounds, more particularly on the ground that the parcels of disputed land which the petitioners' claim to have purchased are actually Government Kharaba land and since long time he i.e. plaintiff has been in possession and occupation of the land. The plaintiff alleged that actually the land which the purchaser (viz. the petitioner) claims to have purchased is situate at different place i.e. the location of the land is at different place but in collusion with certain employees in Government office the location of land is sought to be shown at the place where actually the land in possession of the plaintiff is situate and thereby the land in question which is actually in plaintiff's possession (which is Government Kharaba land) is sought to be shown as the land purchased by the petitioner.
4.3 On the said and other allegations the respondent No.1 filed the suit and prayed for declaration and injunction against the defendants Page 4 C/SCA/6647/2013 ORDER i.e. present petitioners.
4.4 The respondent No.1 i.e. original plaintiff also impleaded State Government as party defendant in the suit proceedings. 4.5 It is pertinent that during the pendency of the said suit, present respondent Nos. 3 and 4 moved an application dated 21.11.2012. 4.6 The said application came to be registered as Exhibit-22.
4.7 The applicants of the said application asserted in their application Exhibit-22 that the land in question is Gaucher Land and the plaintiff was actually nominated as representative of all persons interested in protecting gaucher land but now they apprehend that the plaintiff (i.e. respondent No.1 herein) will enter into some type of inter-se settlement with the defendant (i.e. present petitioners and purchasers of the land in question) which will Page 5 C/SCA/6647/2013 ORDER affect their right and also rights of other residents of the village and that therefore they may be allowed to join the suit proceedings and they may be permitted to continue to prosecute the suit proceedings.
4.8 Whilst the said application was pending consideration, the original plaintiff filed application dated 15.1.2013 which came to be registered as application Exhibit-27 whereby the plaintiff (-present respondent No. 1-) sought permission to withdraw the suit). 4.9 On the said application present respondent Nos. 3 and 4 (i.e. applicants of above mentioned application - Exhibit-22) put a remark that they have serious objection if the request to withdraw the suit is granted.
4.10 It is also pertinent that learned advocate for respondent State i.e. learned AGP merely put the remark "seen" coupled with the remarks that "no objection".
Page 6 C/SCA/6647/2013 ORDER 4.11 Having regard to the application exhibit-22, the allegation originally made in the plaint and more particularly the details mentioned by the applicants of application (exhibit-22) in their application dated 21.11.2012 i.e. exhibit-22, learned trial Court passed order that two applications will be heard together and appropriate orders will be passed. 4.12 The learned trial Court subsequently took
-up the two application exhibit-22 and exhibit-27 for hearing and after hearing the concerned parties, learned trial Court passed the order dated 4.2.2013 as common order below exhibit-22 and exhibit-27.
4.13 By the impugned order learned trial Court allowed exhibit-22 application permitting the applicants of the said application i.e. present respondent Nos. 3 and 4 to be impleaded as party to the suit proceedings and taking into account the seriousness of the allegations made by the Page 7 C/SCA/6647/2013 ORDER respondent No.3 and 4 in their application exhibit-22, learned trial Court considered it appropriate to treat the said suit as representative suit under Order 1 Rule 8(2) and directed vide said common order dated 4.2.2013 that the suit will be treated as representative suit under Order 1 Rule 8(2) and necessary procedure in accordance with the said provision may be carried out.
4.14 As mentioned earlier the applicants of application exhibit-27 i.e. original respondent who sought permission to withdraw suit has not preferred present petition. However, purchasers of the land in question i.e. the defendant Nos. 2 and 3 in the suit have taken out present petition.
4.15 The petitioners have challenged the said common order dated 4.2.2013.
5. Mr. Dave, learned advocate has appeared for the petitioners, Mr. Acharya, learned advocate Page 8 C/SCA/6647/2013 ORDER has appeared for respondent Nos. 3 and 4 and Mr. Hajare learned AGP has appeared for the State Government.
6. As usual, learned AGP has, in this proceedings also has remained absolutely passive and has maintained non-participative position without offering any comment and without even clarifying as to whether the respondent State supports the order or supports the petitioners.
7. I have heard learned advocate for the petitioner and respondent Nos. 3 and 4 and also considered the material on record.
8. Mr. Dave, learned advocate for the petitioner submitted that the petitioner purchased the land from the owner and occupier of the land in question.
8.1 He also submitted that before the transaction was entered into and before the sale deed was executed, the original vendor had made an Page 9 C/SCA/6647/2013 ORDER application to District Inspector of Land Records (hereinafter referred to as 'DILR') who, after making survey of the site i.e. parcels of land had submitted report stating that there was some error in the map earlier prepared by the revenue authority and some changes / modifications were required to be made. The authority also discussed about changes / modifications which were required to be made. According to the learned advocate for the petitioners in view of the said report by the DILR it was clarified that the allegations that the land in question was government land are not correct. Learned advocate for the petitioners submitted that the application submitted by respondent Nos. 3 and 4 i.e. exhibit 22 could not have been entertained. Learned advocate for the petitioners also submitted that the said applicants i.e. present respondent Nos. 3 and 4 are not necessary parties to the proceedings and they have no reason or justification to join the proceedings however, learned trial Court failed Page 10 C/SCA/6647/2013 ORDER to appreciate the said aspect and committed error in allowing the application exhibit 22 preferred by the applicants i.e. present respondent Nos. 3 and 4. Learned advocate for the petitioners also submitted that the order below exhibit 27 is also unjustified.
9. Mr. Acharya, learned advocate for the respondent Nos. 3 and 4 submitted that the respondents are residents of the village where the suit lands are situate. Mr. Acharya, learned advocate for the respondent Nos. 3 and 4 also submitted that the said applicants i.e. present respondent Nos. 3 and 4 are engaged in Animal Husbandry and their cattle graze in the Gaucher Land i.e. disputed suit property and that cattle of other villagers also graze there and that therefore when the said respondent Nos. 3 and 4 learnt that the petitioners have entered into a so-called agreement with some person who claim ownership of the disputed land and when the said applicant also learnt that the said two parties Page 11 C/SCA/6647/2013 ORDER have executed sale deed and the original plaintiff who had filed suit opposing such transaction was likely to withdraw suit upon having entered into settlement with purchasers of the land i.e. present petitioners, they submitted the application with request to allow them to join the proceedings so that they can continue to prosecute the suit in order to protect Gaucher Land which is matter of interest for all residents of the village.
9.1 Mr. Acharya, learned advocate for the respondent Nos. 3 and 4 submitted that in this view of the matter, respondent Nos. 3 and 4 are not outsider and cannot be said to be person not interested in the matter more particularly when the suit property according to the applicants, is Gaucher Land.
10. The learned AGP, has, as mentioned above not made any submission and has remained silent.
11. It has emerged from the facts and Page 12 C/SCA/6647/2013 ORDER circumstances of the case and from the material on record that the petitioners entered into transaction with some person/s to purchase the disputed suit property. It appears that the alleged transaction was entered into between the vendor/s and the petitioners somewhere in 2007. 11.1 Initially the original plaintiff claimed that the land in question is Government Kharaba land and subsequently the respondent Nos. 3 and 4 have also categorically and expressly claimed and asserted that the land in question is government land and actually it is Gaucher Land and it is being used as such by the residents of the village. The petitioners i.e. original purchasers of the land in question have disputed said aspect and tried to claim that it is private land. 11.2 It is pertinent that the petitioners herein have, after having purchased the land, and after above referred suit came to be filed, have sold the land to 3rd party.
Page 13 C/SCA/6647/2013 ORDER 11.3 However, what is more important is that the said fact has been suppressed by the petitioners in present petition.
11.4 The petition does not deserved to be entertained on this ground.
11.5 When the petitioners have already sold the land they do not have any interest in the suit property and therefore they have no cause of action and / or any cause to initiate and prosecute this petition and the petitioners have no justification to prosecute the petition by suppressing the fact that they have sold the land and now the land is neither under their ownership nor in their possession.
11.6 The conduct of the petitioner to sell the suit land in midst of the proceedings and then not disclosing the said fact disentitles him to prosecute this petition and the petition does not deserve to be entertained.
Page 14 C/SCA/6647/2013 ORDER 11.7 This factual aspect is not disputed by learned Counsel for the petitioners. 11.8 Actually upon being confronted with the said fact the learned Counsel not only admitted and confirmed the said fact but also admitted and confirmed that the petitioners have not disclosed and mentioned the said fact in the petition. 11.9 The petition, therefore, as such deserves to be dismissed on this ground alone.
12. However, the Court considered it proper to examine other aspects repeatedly emphasized by the learned advocate for the petitioners at the time of hearing, even after the Court, upon having been informed about the said fact by the learned advocate for the respondents No. 3 and 4, asked the learned Counsel for the petitioners about the cause for continuing the proceedings of this petition.
12.1 It is pertinent that the plaintiff, who is Page 15 C/SCA/6647/2013 ORDER resident of the village instituted the suit proceedings.
12.2 In the plaint the plaintiff expressly and specifically claimed that the land in question is Government Kharaba land and the purchaser is trying to claim that he has purchased the disputed land whereas the land allegedly purchased by the defendant No.2 of the suit is situate at different location.
12.3 Of course plaintiff alleged that he is in possession of the land in question. However since the question about he alleged possession and occupation of the land in question by the petitioners is not matter of plaint, or of the petition, it is not necessary to enter into that dispute.
12.4 The relevant facts so far as present proceedings are concerned is that in the plaint the plaintiff himself asserted that the land in question is government land.
Page 16 C/SCA/6647/2013 ORDER 12.5 When the plaintiff instituted the suit with such assertion and claimed that the land in question is Government Kharaba land then the plaintiff would not be justified in entering into some private settlement with present petitioners, much less to withdraw such suit.
12.6 Despite such facts, plaintiff allegedly entered into settlement with the petitioners and the petitioners thereby appears to have managed to convince the plaintiff to withdraw the suit. 12.7 In that view of the matter, the plaintiff submitted the application dated 15.1.2013 informing to the Court that he withdraws suit. 12.8 However, before such application could be submitted by the plaintiff, other residents of village viz. present respondents No. 3 and 4 apprehended that the plaintiff may take such action i.e. action of withdrawing the suit and that therefore two residents of the village i.e. Page 17 C/SCA/6647/2013 ORDER present respondent Nos. 3 and 4 submitted an application (exhibit 22) dated 21.11.2012 requesting the Court to implead them as party to the proceedings so that the suit can be prosecuted on merits and any attempt by the original plaintiff to withdraw the suit can be opposed.
12.9 While the above mentioned application dated 15.1.2013 came to be submitted by original plaintiff learned trial Court found prima facie substance in the application submitted by present respondent Nos. 3 and 4 and therefore considered it appropriate to hear and decide both application together.
12.10 Subsequently, both matters came to be heard by the learned trial Court together and at the time hearing learned trial Court considered the contents of the application submitted by present respondent No.3 and 4 and also considered purshis filed by the plaintiff seeking withdrawal of the Page 18 C/SCA/6647/2013 ORDER suit.
12.11 Having regard to the fact that the land in question, even according to the plaintiff, is said to be government Kharaba land and also having regard to the fact that the said aspect was reiterated and asserted by the applicants of application exhibit 22 i.e. present respondent Nos. 3 and 4, learned trial Court considered it appropriate to allow the said applicants to join the proceedings and also considered it necessary to examine the said aspect (i.e. whether the said land is government land / gaucher land or it is private land as claimed by the petitioner) on merits.
12.12 In light of such facts and circumstances the learned trial Court also found it proper to convert the suit into representative suit so that it may not be withdrawn so lightly or casually by anyone and that therefore impugned order dated 4.2.2013 came to be passed.
Page 19 C/SCA/6647/2013 ORDER 12.13 As mentioned herein above, the applicants of exhibit 22 are residents of the village where the suit property is situate. The said applicants are engaged in activity of animal husbandry. 12.14 The said applicants have claimed that the land in question is Gaucher Land which is being used by the residents of the village as Gaucher Land and cattle of the villagers graze there. 12.15 In that view of the matter when the said applicants have come forward as representatives of the residents of the village and when they want to continue the prosecution of the suit and to oppose withdrawal of the suit proceedings, then the conclusion and decision of the learned trial Court to allow them to join proceedings, in view of this Court, cannot be faulted.
13. In view of this Court, learned trial Court has not committed any error in allowing the said applicants to join the proceedings.
Page 20 C/SCA/6647/2013 ORDER 13.1 The said decision and order by the learned trial Court cannot be said to be arbitrary or unreasonable much less perverse. 13.2 On the contrary, the said order, in view of this Court is just and proper in view of the facts of the case and more particularly in view of the conduct of the original plaintiff and conduct of the petitioners herein coupled with the fact related to the land in question. 13.3 Besides this, having regard to the fact that the plaintiff himself had alleged that the suit property is government Kharaba land, plaintiff was not justified in submitting application exhibit 27 to withdraw the suit.
13.4 The learned trial Court has not committed any error in disallowing the said application / request.
14. Now the issue remains about the learned trial Court's decision of converting the said suit into Page 21 C/SCA/6647/2013 ORDER suit in representative capacity. 14.1 Having regard to the claim / allegation by the plaintiff and the two applicants that the land in question appears to be government Kharaba land / Government land and also having regard to the fact that the learned government pleader, without realizing the seriousness and gravity of the action of the original plaintiff mechanically put the remarks "seen. No objection" and also having regard to the fact that subsequently the applicants of application Exh.22 also asserted that the land in question is Gaucher Land and having regard to the conduct of the original plaintiff and present petitioners, the learned trial Court cannot be said to have committed any error in deciding to convert the said suit into representative suit without impleading respondent Nos. 3 and 4 as party to the proceedings.
15. On overall facts and circumstances of the Page 22 C/SCA/6647/2013 ORDER case, the said part of the common order of the learned trial Court cannot be faulted.
16. In midst of such facts and circumstances, the petitioners herein, having realized the situation, appears to have sold the land to 3 rd party.
16.1 Not only this but the petitioner suppressed the said fact in the petition.
17. Having regard to the fact that even after having sold land to 3rd party, the petitioners not only instituted present petition but he even continued to prosecute the petition without disclosing the fact that they have sold the land and the learned Counsel for the petitioners, upon being questioned that after having sold the land why are the petitioners prosecuting the petition, did not give any reply in response to the said querry and instead continued to make submissions to claim that learned trial Court has committed error in passing the impugned the order. He could Page 23 C/SCA/6647/2013 ORDER not also deny the fact that the land is sold to 3rd party. This Court is of the view that the petition deserves to be dismissed with cost.
18. Having regard to the facts and circumstances discussed hereinabove and the conduct of the petitioners, the petitioners shall pay cost of Rs.15,000/-.
With the aforesaid clarifications the petition is disposed of accordingly. Notice is discharged. Ad-interim relief / interim relief, if any, stands vacated forthwith.
(K.M.THAKER, J.) Suresh* Page 24