Heirs Of Manjulaben Gordhan Bhai ... vs Shree Tapi Brahmacharya ...
2021 Latest Caselaw 7295 Guj

     C/LPA/97/2018                              JUDGMENT DATED: 30/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 97 of 2018

            In R/SPECIAL CIVIL APPLICATION NO. 14268 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA                                 Sd/-

and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI                          Sd/-

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1    Whether Reporters of Local Papers may be allowed                  No
     to see the judgment ?

2    To be referred to the Reporter or not ?                           No

3    Whether their Lordships wish to see the fair copy                 No
     of the judgment ?

4    Whether this case involves a substantial question                 No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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   HEIRS OF MANJULABEN GORDHAN BHAI PATEL, BHAGVATIBEN
                         Versus
 SHREE TAPI BRAHMACHARYA ASHRAMSABHA THRO PRESIDENT & 4
                         other(s)
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Appearance:
MR DIPEN K DAVE(3296) for the Appellant(s) No. 1
MR JITENDRA M PATEL(620) for the Respondent(s) No. 1
MR P J YAGNIK(1004) for the Respondent(s) No. 5
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    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 30/06/2021

                            ORAL JUDGMENT

C/LPA/97/2018 JUDGMENT DATED: 30/06/2021

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ applicant of a writ application and is directed against the order passed by a learned Single Judge of this Court dated 21.04.2009 in the Special Civil Application No.14268 of 2008, by which, the learned Single Judge declined to entertain the writ application and rejected the same thereby affirming the order passed by the Gujarat Revenue Tribunal as challenged by the writ applicant.

2. This litigation has some history and we would like to narrate the same in brief. The appeal before us is of the year 2018. The impugned order passed by the learned Single Judge is of the year 2009. In such circumstances, we inquired with Mr. Raval, the learned counsel appearing for the appellant as to why there has been a long and inordinate delay in filing the appeal. Mr. Raval pointed out that the Special Civil Application No.14268 of 2008 was filed by the writ applicant through her power of attorney holder, namely, Keshavlal Chhotalal Patel, seeking to challenge the order dated 31.07.2008 passed by the Gujarat Revenue Tribunal in the Revision Application No.782 of 1994. The said special civil application was ordered to be rejected summarily by a learned Single Judge of this Court vide order dated 21.04.2009. Against the said order passed by the learned Single Judge, the appellant herein preferred the Letters Patent Appeal

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No.1030 of 2009, which came to be dismissed as not maintainable following a Larger Bench judgment of this Court in the case of G.S.R.T.C. vs. F.M. Mogal, (2014) 1 GLH 1. Mr. Raval further pointed out that being aggrieved by the order dated 21.04.2009 passed by the learned Single Judge in the Special Civil Application No.14268 of 2008, the appellant herein went before the Supreme Court by filing the SLP (Civil) No.35858 of 2014. While the SLP of the appellant was pending, the Supreme Court delivered a judgment in the case of Shri Jogendrasinhji Vijaysinghji vs. State of Gujarat & Ors., (2015) 9 SCC

1. In view of the judgment of the Supreme Court in the case of Jogendrasinhji (supra), the appellant herein sought permission to withdraw the SLP. The Supreme Court, while allowing the appellant to withdraw the SLP, clarified that it would be open for the appellant herein to file a fresh letters patent appeal and the maintainability of the same shall be considered by the Court keeping in mind the dictum as laid in the judgment of Jogendrasinhji (supra).

3. Thus, it appears that after the SLP came to be withdrawn, the present letters patent appeal came to be filed before this Court on 31.01.2017 with an application for condonation of delay of 2812 days. It appears that a Coordinate Bench of this Court by an order dated 09.01.2018, condoned the delay of 2182 days and that is how the present appeal came to be registered.

4. It is very distressing to note that although the delay

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was ordered to be condoned way back on 09.01.2018 and the present appeal came to be registered accordingly, still for a period of almost three years, no steps were taken to get this appeal heard. We take notice of the fact that in the year 2018, this appeal came up for not less than fifteen times on board and in the year 2019, it came upon board for not less than ten times. Thereafter, came the Lock-down and today once again the appeal has come up for hearing.

5. We have heard Mr. Harsh Raval, the learned counsel appearing for the appellant, Mr. Jitendra Patel, the learned counsel appearing for the respondent No.1-Trust and Mr. P.J. Yagnik, the learned counsel appearing for the respondent No.5 (the purchaser of the property in question).

6. It appears from the materials on record that the subject matter of this litigation is a parcel of land bearing Block No.148, admeasuring 68300.00 sq. mts, situated at the village Zarna, Taluka: Valiya, District: Bharuch. One Shri Prabhudas Thakordas Bhagat was the owner of the land in question. Prabhudas executed a will in favour of his wife, namely, Divaliben. In the will, Prabhudas gave life interest to his wife Divaliben, and after the demise of Divaliben, the property was to devolve in favour of the respondent No.1-Trust.

7. The case of the appellant is that Keshavlal Chhotalal

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Patel was cultivating the land in question. This Keshavlal is the nephew of late Shri Prabhudas Thakordas. The appellant Smt. Manjulaben is the wife of Keshavlal Chhotalal Patel. The learned counsel appearing for the appellant brought to our notice as regards the proceedings of divorce between Keshavlal Patel and Manjulaben. It is the case of the appellant that the land was given to Manjulaben by Keshavlal Patel for her maintenance and Manjulaben cultivated the said land personally till her demise. It is also the case of the appellant that Manjulaben was paying rent to late Smt. Divaliben, i.e, the land lady. After Manjulaben came to be declared as a tenant vide order dated 10 th December, 1992 passed by the Mamlatdar & ALT in the Tenancy Case No.03 of 1991, the order under the provisions of Section 32(G) and 32(M) of the Act came to be passed.

8. It appears from the materials on record that the order passed by the Mamlatdar & ALT, referred to above, was taken up in suo motu revision by the Deputy Collector, Rajpipla in the Tenancy Revision Case No.13/1993-94 in exercise of powers under Section 76(A) of the Act. However, on 23.05.1994, the proceedings came to be dropped by the Deputy Collector.

9. Being aggrieved by an order passed by the Deputy Collector under the provisions of Section 76(A) of the Act, referred to above, the respondent No.1-Trust challenged the same before the Gujarat Revenue Tribunal. The

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Tribunal allowed the revision application filed by the trust.

10. Being dissatisfied with the order passed by the Tribunal, the appellant came before this Court by filing the Special Civil Application No.14268 of 2008 and as the same came to be rejected, the present appeal.

11. The learned Single Judge, while rejecting the writ application, held as under;

"7. On behalf of the petitioner, learned advocate submitted that the Trust having not disputed the orders made by the Mamlatdar and ALT under the provisions of Sections 70(b), 32(G) and 32(M) of the Act could not have challenged the same before the Tribunal by only challenging the order made by the Deputy Collector under Section 76(A) of the Act. That in the proceedings under Section 70(b) of the Act, the Trust had appeared as noted by the Mamlatdar and ALT and had been declared to be landlord of the land in question, but the right of the petitioner to occupy the land as tenant, had been upheld. In fact, thereafter, in terms of provisions of Act, the price had been fixed and the land purchased by petitioner tenant. That the said orders had attained finality. The Tribunal, therefore, could not have disturbed the said orders in the proceedings, which only challenged the order made by the Deputy Collector. It was next submitted that the trust had also filed a Civil Suit, wherein the suit came to be dismissed for want of prosecution and trust had not taken any further steps to either have the suit restored or challenge the order of rejection in appropriate proceedings.

Therefore, the trust could not claim possession of the property, which was held by the petitioner as a tenant duly declared to be so under the provisions of the Act. The learned advocate, therefore, urged that the impugned order of the Tribunal was not only not supported by the evidence on record, but had been

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passed after ignoring relevant evidence, and hence, was perverse order, which was required to be interfered.

8. It is necessary to note that the power of attorney holder of the petitioner Shri Keshavlal Patel is husband of deceased Smt. Manjulaben and the case of the petitioner is that Shri Keshavlal Patel was a tenant on the land at the time when Smt. Diwaliben was alive. That Shri Keshavlal Patel and Smt. Manjulaben were divorced and the tenancy was parted with in favour of divorced wife by the husband towards maintenance. This fact has not been accepted by the Tribunal in absence of any documentary evidence as to such divorce having been taken place between Shri Keshavlal Patel and Smt. Manjulaben. The Tribunal has, therefore, not accepted that the tenancy held by Shri Keshavlal was parted with in favour of Smt. Manjulaben by way of terms of settlement for divorce. It is in this context that one has to appreciate that Shri Keshavlal and his younger brother, Shri Hirabhai Chhotalal Patel, are shown to be heirs of deceased Smt. Diwaliben Prabhudas Thakordas Bhagat and joined as respondents No.1/1 and 1/2 in Tenancy Case No.3 of 1991 before the Mamlatdar and ALT.

9. It is not disputed that late husband of Smt. Diwaliben held willed away the property in favour of Smt. Diwaliben during her life time and thereafter, the property was to pass over to the trust. Therefore, there was no question of Shri Keshavlal and Hirabhai either claiming to be heirs of deceased Smt. Diwaliben, or being described as such in the proceedings under Section 70(b) of the Act. Thus, on facts, the Tribunal has found that the entire conduct of the parties was fraudulent and collusive.

10. The submission that the orders made under Sections 70(b), 32(G) and 32(M) were not challenged by the trust, does not merit acceptance. The Deputy Collector had taken the said orders in Revision suo

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motu and therefore, when the order was made on 23.5.1994 by the Deputy Collector, two earlier orders dated 10.12.1992 and 16.8.1993 stood merged in the order made by the Deputy Collector. Once the order made by the Deputy Collector was challenged before the Tribunal, the Tribunal was empowered to go into correctness or otherwise of all the orders. Once the Tribunal came to the conclusion that the Deputy Collector had wrongly dropped the proceedings, theTribunal was justified in examining the validity and correctness of the orders made by the Mamlatdar and ALT in the aforesaid fact situation."

12. The most incriminating piece of circumstance that weighed with the learned Single Judge is that the power of attorney holder of the appellant Shri Keshavlal Patel is none other but the husband of the deceased Smt. Manjulaben and the case of the appellant herein is that Shri Keshavlal was a tenant on the land at the time when Divaliben was alive. The fact that Keshavlal Patel divorced his wife Manjulaben and the tenancy was parted in favour of the divorced wife by the husband towards the maintenance has not been accepted by the Tribunal nor by the learned Single Judge. The learned Single Judge has recorded a finding while affirming the order passed by the Tribunal that the entire conduct of the parties was fraudulent and collusive.

13. One principal argument canvassed by Mr. Raval is that the order passed by the Deputy Collector, dropping the proceedings of suo motu revision could not have been challenged by the respondent No.1 herein before the

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Tribunal as the same was in exercise of powers under Section 76(A) of the Act. This argument of Mr. Raval has been very well dealt with by the learned Single Judge in Para-10 of the judgment and we are in complete agreement with the view taken by the learned Single Judge.

14. The picture that emerges, as on date, is that the litigation has not come to an end. It appears that this is going to be a never ending litigation because the parties are now before the Civil Court. The respondent No.5 herein is the purchaser of the subject land. He claims to be a bonafide purchaser of the subject land for value without notice. According to him, there is a sale deed duly executed in his favour of the year 2006.

15. In the overall view of the matter, we are convinced that no case is made out for interference.

16. In the result, this appeal fails and is hereby dismissed. The connected civil application also stands disposed of.

17. We clarify that our observations are relevant only for the purpose of deciding the present appeal. If the parties are before any Civil Court, then their respective rights shall be determined by the competent Civil Court on the basis of the evidence that may be led, oral as well as documentary and the Civil Court shall, in no manner, be influenced by any of the observations made by the

C/LPA/97/2018 JUDGMENT DATED: 30/06/2021

learned Single Judge nor by the observations made by this Court in the present order.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J)

Vahid