Gujarat High Court
Shankarbhai Keshavlal Patel vs Prerak Rakeshbhai Desai on 9 December, 2022
Bench: Hemant M. Prachchhak
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1826 of 2021
In F/FIRST APPEAL NO. 7674 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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 ?
==========================================================
SHANKARBHAI KESHAVLAL PATEL
Versus
PRERAK RAKESHBHAI DESAI
==========================================================
Appearance:
MR PH GOHIL(1878) for the Applicant(s) No. 1
MR VAIBHAV A VYAS(2896) for the Applicant(s) No. 1
for the Respondent(s) No. 10
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 5
NOTICE UNSERVED for the Respondent(s) No. 10.2,13,18,19
SAMARTH S AMIN(8897) for the Respondent(s) No. 26
SERVED BY RPAD (N) for the Respondent(s) No. 12,14,15,16,17
MR AMIT V THAKKAR(3073) for the Respondent(s) No. 3
MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 25
MR TARAK DAMANI(6089) for the Respondent(s) No. 26
MR UDAYAN P VYAS(1302) for the Respondent(s) No. 8
Page 1 of 73
Downloaded on : Sat Dec 24 02:29:53 IST 2022
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
MR.MANAN BHATT(6535) for the Respondent(s) No. 1
NANAVATI ASSOCIATES(1375) for the Respondent(s) No. 11
NOTICE SERVED for the Respondent(s) No. 10.1,2,20,21,22,23,24,4,6,7,9
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/12/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. By way of the present application the
applicant seeks to challenge the consent
order and decree passed in Special Civil
Suit No.516 of 2008 by the learned 21st
Additional Senior Civil Judge, Vadodara on
28.01.2021.
2. The applicant was not a party to the
Special Civil Suit No.516 of 2008 and
therefore, the present application is
preferred seeking leave of this Court to
permit the applicant to file substantive
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
appeal challenging the judgment and order
dated 21.01.2021 and decree dated
28.01.2021.
3. Brief facts devoid of the details
leading to the present application are as
follow:
3.1 Opponent Nos.1 and 2 are the original
plaintiffs, who preferred the Special Civil
Suit No.516 of 2008 against the opponent
Nos.3 to 25, who are the original
defendants. The minor plaintiffs Nos.1 and
2 had claimed their shares to the tune of
18.51% in land bearing City Survey No.1-A2,
Tikka No.27/15, 16 and 17 in Ward No.B at
Moje Vadodara City admeasuring 1,22,718
square meters. The plaintiffs sought their
right in the amount of compensation of the
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said land which was acquired by the State
Government in connection with the Land
Reference No.18 of 2006, which was pending.
Seeking the declaration to the effect that
the grandfather of the plaintiffs, late
Shri Mahendrakumar Purshottambhai Desai did
not have any legal right to execute a will
as the suit land was a coparcener property.
It was urged that only the plaintiffs and
the original defendant Nos.5 to 12 and
their heirs defendant Nos.18 to 23 were
entitled to 100% share in the amount of
compensation. Therefore, it was prayed to
declare and hold that the orders/decree
passed by the Civil Judge (Senior
Division) Vadodara in Special Civil Suit
No.116 of 2007 and Review Application
No.169 of 2006 as well as the order passed
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
in Review Application No.89 of 2007 be
declared void.
3.2 They further sought the declaration
that the defendant No.1 namely
Mr.Jayantibhai Ramdas Patel did not have
any right to the amount of compensation on
the strength of the settlement arrived at
by and between the parties in the
proceedings of Special Civil Suit No.116 of
2007 and thereafter in both the Review
Applications filed by both the defendants
where they further sought the direction
from the defendant No.1 namely
Mr.Jayantibhai Ramdas Patel to re-deposit
the amount of Rs.19,23,68,564/- to the
Treasury of Government, which the defendant
No.1 received in Reference Case No.18 of
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
2006 on the basis of a Will dated
22.08.1995. This defendant had obtained
probate in Probate Application No.224 of
2001, which was revoked in Probate
Application No.23 of 2003 or in the
alternative, a decree for recovery of the
said amount with 12% interest to be paid to
the share of the coparceners had been
requested. It was further prayed to pass a
permanent injunction against the defendant
No.1 from withdrawing the amount of
compensation from defendant Nos.2 to 4 in
Land Reference Case No.18 of 2006 with a
further prayer that the defendant Nos.2 to
4 may be restrained from making payment of
the said amount of compensation to the
defendant No.1.
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
3.3 The plaintiffs as emerged from the
record are the legal heirs of late Shri
Mahendrakumar Purshottamrai Desai, who was
the grandfather of the plaintiff and passed
away on 31.10.1995. He was the original
resident of Vadodara City and had his land
at Vadodara. The land admeasuring 1,22,718
square meters came to the share of
grandfather of the plaintiffs, which was
acquired by the Government for public
purpose.
3.4 Late Shri Mahendrakumar Purshottambhai
Desai initiated the revenue proceedings
against the authorities of the State
Government. The same culminated into the
order dated 29.11.1991 passed by the
Gujarat Revenue Tribunal, whereby it was
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
held that 53 Vighas and 18 Vasa land
belong to the ownership of late Shri
Mahendrakumar Desai.
3.5 The opponent No.3-State Government
preferred Special Civil Suit No.776 of 1996
in the Court of Senior Civil Judge,
Vadodara, whereby the order dated
29.11.1991 passed by the Gujarat Revenue
Tribunal was challenged and a declaration
was sought to the effect that the land
belonged to the State Government. The said
Civil Suit was dismissed by judgment and
order dated 21.03.1994.
3.6 The State Government preferred First
Appeal No.969 of 1994 before this Court. In
the First Appeal, Civil Application NO.4849
of 2000 was preferred for bringing
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
additional evidence on record. The said
Civil Application was dismissed on
22.06.2000. The State Government preferred
two Civil Applications Numbering 964 of
2002 and 1150 of 2002. The Court dismissed
the First Appeal as well as both the Civil
Applications on 07.05.2002.
3.7 The State Government preferred Civil
Appeal Nos.87898 to 87900 of 2002 against
the said dismissal before the Apex Court.
They also met the very fate of dismissal on
01.04.2006. However, the Civil Appeal
arising from the First Appeal, the Apex
Court partly allowed the same and held that
out of 53 Vighas and 18 Vasas of land, 2
Vighas and 5 Vasas of land was acquired by
the State Government. Thus, out of the
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
total land admeasuring 1,28,073 square
meters (53 Vighas and 18 Vasas), excluding
5355 square meters (2 Vighas and 5 Vasa)
the remaining land 1,22,718 square meters
came to the share of the grandfather of the
plaintiffs. The said land came to be
acquired by the State Government for public
purpose by Notification dated 25.01.2007.
The Preliminary Award of Rs.23 Crore came
to be passed by the land acquisition
officer, out of which 81.90% share i.e. the
amount of Rs.19,23,68,564/- was received by
the original defendant No.1-Jayantibhai
Ramdas Patel. The Land Reference Case No.18
of 2006 is pending adjudication.
3.8 The reason why the defendant No.1-
Jayantibhai Ramdas Patel was granted the
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
share was because of his having been
bequeathed the land by way of a Will
executed by late Shri Mahendrabhai Desai on
22.08.1995 in favour of the defendant No.1-
Jayantibhai Ramdas Patel. Jayantibhai
Ramdas Patel also filed Probate Application
No.224 of 2001, which was allowed by the
Civil Court, Vadodara by issuance of
Probate Certificate in his favour.
3.9 In the year 2003, original defendant
Nos.5 to 7 preferred Probate Revocation
Application No.23 of 2003, which was partly
allowed and Probate Certificate came to be
revoked on 02.09.2004.
3.10 A Review Application No.169 of 2006
was preferred by the defendant No.1-
Jayantibhai Ramdas Patel against the
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
original defendant Nos.5 to 7 where the
parties entered into amicable settlement
and has agreed by and between the parties
that 81.90% share of the amount of
compensation went to Jayantibhai Ramdas
Patel and 18.10% would go to defendant
Nos.5 to 7. Thus, the consent decree was
arrived at on 07.05.2007 and as there was
an error in the decree, Review Application
No.89 of 2007 was filed and the consent
order was passed on 28.05.2007. Hence,
81.90% share in the amount of compensation
came in favour of the defendant No.1.
3.11 The defendant No.1-Jayantibhai
Ramdas Patel preferred Special Civil Suit
No.116 of 2007 against all the heirs of
late Shri Mahendrakumar Desai, the parties
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
entered into a compromise and the consent
decree came to be passed on 09.04.2007.
3.12 It is the grievance on the part of the
applicant that he was having the direct
interest in the amount of compensation
inasmuch as he entered into the compromise
with Mr,Jayantibhai Ramdas Patel and
because of the consent terms entered into
between the parties i.e. Mr.Jayantibhai
Ramdas Patel and heirs of late Shri
Mahendrakumar Desai in Special Civil Suit
No.516 of 2008 based on which the impugned
order and decree has been passed which is
challenged, his interest has been seriously
jeopardized. He, therefore, has urged that
the parties were fully aware of the rights
and interest of the applicant in the amount
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
of compensation. They have yet chosen to
suppress the material facts before the
Court concerned and obtained the decree,
frauds since vitiates everything and the
deed of compromise arrived at is void as
per the provision of Order XXIII Rule 3 of
the Code of Civil Procedure on account of
the suppression and fraud.
3.13 It is further his say that so far as
original defendant Nos.24 and 25 are
concerned, they have nothing to do with the
dispute in question and yet they were
joined as the parties and they have been
given 35% share each in the amount of
compensation which is also indicative of
the fact that this is a fraud played upon
the Court. The defendant No.24 is son of
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the Member of Legislative Assembly (MLA)
and defendant No.25 is the wife of an
advocate.
4. This Court issued the notice, couple of
the opponents were not served have
subsequently been served and Rakesh
Mahendrakumar Desai-opponent No.8 filed his
affidavit in reply on behalf of the
opponents.
4.1 He claimed to be aware of entire gamut
of facts and has denied all allegations and
contentions.
4.2 It is contended fervently that the very
application is frivolous, malicious and
unsubstantiated deserves in limine
dismissal with exemplary cost. The
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
application suffers from suppressio Veri
and Suggestio Falsi. There is a deliberate
and willful suppression of material and the
applicant is a complete stranger to the
suit proceedings and has no locus standi to
approach this Court questioning the consent
decree where he is not a party.
4.3 According to this opponent, he is
seeking leave to prefer First Appeal
against the consent order and decree dated
28.01.2021 passed by the learned 21st
Additional Senior Civil Judge, Vadodara in
Special Civil Suit. He claims the rights
and interest in the amount of compensation
to be received by Mr.Jayantibhai Ramdas
Patel (original defendant No.1 and opponent
No.3 herein) and this is based on one
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
Memorandum of Understanding ('the MoU'
hereinafter) allegedly executed by and
between applicant and opponent No.3 on
25.07.2008, which falls short of an
enforceable contract.
4.4 It is further contended that this
agreement was for rights of compensation
with regard to the land bearing survey
No.1/A/2, Tikka No.27/15, admeasuring
1,28,073 square meters, which was already
acquired by the State Government.
4.5 According to this opponent, the said
land was given to the defendant No.1-
Jayantibhai Ramdas Patel by the original
owner of the land in question i.e. late
Shri Mahendrakumar Purushottamrai Desai
through Will dated 22.08.1995. This Will is
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
proved to be a forged Will in other civil
and criminal proceedings. Applicant is an
accused in criminal proceedings pursuant to
the First Information Report filed being I-
CR No.77 of 2017 registered with Navapura
Police Station for the offences under
Sections 465, 467, 468, 471, 474 and 120B
of the Indian Penal Code. The applicant
deserves to be arrested for conspiracy of
the accused to take away land acquisition
compensation on the basis of a forged Will
for doing Benami Transactions, Money
Laundering or for entering into a
maintenance and champerty contracts.
4.6 It is further contended that there were
various proceedings held between the legal
heirs of Mahendrakumar Desai and land
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
mafias including the applicant and opponent
No.3.
4.7 It is urged that the appeal is not
allowed to be preferred from a decree
passed with the consent of parties, as the
Civil Procedure Code bars any appeal
against the consent decree passed on the
compromise arrived at between the
parties of the proceedings. Therefore, when
the appeal itself is not available under
the statute, no leave to appeal can be
filed or granted against the decree passed
on compromise and with the consent of
parties in the suit proceedings. A person
not being a party to the consent decree is
not bound by the decree as per the settled
position of law. If he has independent
rights under any valid document, he has to
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establish his rights in independent suit
which he has already done and hence, the
present application is misconceived and not
tenable.
4.8 It is further contended that there is a
willful and deliberate concealment by the
applicant. It is trite law that the
equitable and discretionary jurisdiction
may not be exercised in favour of the
litigant who has suppressed or stated
incorrect facts. The principle enunciated
by the Apex Court with reference to
equitable and discretionary jurisdiction
vis-a-vis the conduct of the parties apply
in the present proceedings. The Apex Court
often has held that the High Court is
exercising discretionary and extraordinary
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jurisdiction under Article 226 of the
Constitution of India. A Court of Law is
also a Court of Equity and therefore, it is
utmost necessary when a party approaches a
High Court, he must place all the facts
before the Court without any reservation.
4.9 It is urged that the applicant has
suppressed material facts with regard to
Special Civil Suit No.372 of 2017 filed by
the applicant with a cause as projected by
the applicant. On 16.11.2017, the applicant
came to know that the opponent
No.3/Defendant No.1 was acting contrary to
the MoU dated 25.07.2008 and hence, he
filed the suit. It is also interesting,
according to this opponent, to note that
the order dated 09.04.2007 passed in
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Special Civil Suit No.116 of 2007 and
alleged settlement between the parties were
sought to be projected as basis of MoU. The
said order was not in existence since 2009.
Moreover, the opponent No.3-Jayantibhai
Ramdas Patel clearly stated in other
proceedings as well as before the police
authority that the alleged Will dated
22.08.1995 was forged Will and all the
proceedings initiated on the basis of the
said forged Will including the Land
Reference No.36 of 2009 had been withdrawn.
The said proceedings, according to this
opponent, is vexatious and collusive,
except opponent No.3 there is no one else
who is a party to the said MoU dated
25.07.2008. Two Civil Revision Applications
have been pending, challenging the order of
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rejection of applications under Order VII
Rule 11 of the Code of Civil Procedure.
Moreover, Special Civil Application
challenging the transfer of the said suit
proceedings pursuant to the order of the
Apex Court, the said application is
pending.
4.10 It is further the say of this opponent
that the MoU dated 25.07.2008 is not legal
nor valid nor lawful. It is not enforceable
under the law nor any rights or interest
have been crystallized through the said
agreement. The applicant has either forged
or concocted the MoU dated 25.07.2008 or
willfully and voluntarily remained silent
until 23.11.2017 i.e. the date on which the
Special Civil Suit No.372 of 2017 was
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
filed. Moreover, the said agreement cannot
create any right or interest in favour of
the present applicant to prefer the said
application and he is not entitled for
leave to appeal as no right or interest of
the applicant is affected by the consent
order or decree. If at all there is any
right arising from the MoU, it is against
Mr.Jayantibhai Ramdas Patel in his personal
capacity. However, none of the opponents is
concerned with the so called MoU.
4.11 It is further contended by the
opponent that the claim of the applicant is
that the MoU was signed on 25.07.2008 with
original defendant No.1. The right of the
opponent No.3 in compensation is said to
have been acquired by the applicant
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pursuant to such MoU of 25.07.2008.
However, after the so called agreement, the
final payment of compensation at Rs.33
Crore has been received on 31.12.2008 by
Mr.Jayantibhai Ramdas Patel and at that
time the applicant choose not any claim
based on the so called MoU. He even did not
join himself in the Land Reference Case
after executing the so called agreement.
Therefore, the irresistible conclusion can
be drawn that the agreement is nothing but
a concocted document so as to extort money
from the parties.
4.12 On 07.04.2014, the applicant filed a
Special Civil Suit No.207 of 2014 against
the opponent No.3 Mr.Jayantibhai Ramdas
Patel along with others. In the entire
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pleadings of the said proceedings, it is
nowhere mentioned that they both have
executed the MoU dated 25.07.2008.
Moreover, the said suit was decreed on the
basis of compromise pursis and the
applicant settled his claim in the land in
question for 19% which is contrary to the
said MoU. Therefore, it is the say of the
respondent that it is unfathomable as to
why a person who had already acquired the
alleged 81.90% share of opponent No.3 in
the year 2008 settled for only 19% in the
year 2014. Thus, the MoU if at all presumed
to be a legally enforceable document,
ceases to be enforceable by novation. After
the said compromise pursis, the applicant
cannot fall back to the MoU dated
25.07.2008 as it no longer exists.
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4.13 On 28.06.2016, one Pravin Prahladbhai
Patel filed a Special Civil Suit No.245 of
2016 against the applicant claiming that he
had an agreement to sell in his favour for
the land in question. The said suit was
withdrawn after compromise arrived at
between the parties and in the said
proceedings, the applicant had not stated
about the so-called MoU dated 25.07.2008.
4.14 Again on 15.12.2016, a criminal
complaint against the applicant and others
had been filed by the opponent No.8 and
pursuant to the said FIR was registered and
the Will dated 22.08.1995 was found to be
forged. There were various proceedings
initiated by other co-accused.
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4.15 The Apex Court passed an order on
26.04.2017, whereby it is directed that all
the suit proceedings shall be decided along
with Land References and any party claiming
interest in the compensation may apply for
joining in the reference or other civil
suit. However, the applicant choose not to
join in either of the proceedings i.e. in
the Land Reference of Civil Suits for all
these years.
4.16 On 07.08.2017, the FIR No.77 of 2017
is registered and the investigation is in
progress. During the bail proceedings of
the co-accused, the Investigating Officer
had filed a detailed affidavit seeking
remand of one of the co-accused wherein the
role of applicant was clearly mentioned as
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that of the accused. These all are clearly
indicative of the fact that the claim of
the applicant regarding MoU dated
25.07.2008 has no substance. More
particularly, the criminal mindset as
revealed in the affidavit of the
Investigating Officer dated 01.10.2018
suggests that the applicant is a land mafia
and only to frustrate the legal entitlement
of the opponent, the present application
has been preferred.
4.17 It is not disputed that neither the
opponent nor any family member is a party
to the MoU dated 25.07.2008 and therefore,
there is no privity of contract between the
applicant and others. Assuming without
admitting that the agreement is true, valid
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and legal. His entitlement is against the
opponent No.3 and it cannot any right
and/or interest in favour of the applicant
against the opponent or his family members.
4.18 It is further stated in the affidavit
that no right, title or entitlement can be
created through a criminal act. The sole
basis of the agreement is a forged Will
dated 22.08.1995 for which criminal
machinery is set in motion.
4.19 It is also fervently urged that the
fence sitters cannot be given the right to
prefer an appeal by granting the leave. The
law assists those who are vigilant with
their rights and not those who are asleep.
The applicant was well aware that there
were various proceedings going on by and
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between the parties. He had not thought it
appropriate to explain as to what has
prevented him to join the lis while they
were pending adjudication. Therefore, even
if the claim of the applicant is considered
true, he is disentitled to raise any
grievance with regard to the conduct of the
opponent No.3. He has other legal remedies
available and it is wrong to say that he is
remediless.
4.20 Repeatedly it has been urged that
the applicant had been closely watching all
the proceedings since the year 2008 and on
his having failed to assert all his rights
for more than nine years, he filed a suit
against Mr.Jayantibhai Ramdas Patel and
thereafter also, for challenging this
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consent decree after a long lapse of the
limitation period prescribed for filing
appeal, the leave should be denied to him
with cost.
5. The opponent also filed an additional
affidavit stating therein that applicant
took shelter of some of the unserved
respondents whose rights and interests over
the compensation awarded in the LAR have
already been purchased by the respondent
Nos.25 and 26 viz. Amar Ramnbhai Patel and
Sushilaben Rajendrakumar Barot. The
applicant deliberately and in collusion
with respondent Nos.25 and 26 wanted to
delay the hearing of the application by
using a dilatory tactic.
5.1 Once again by order dated 07.04.1980
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the Assistant Collector, Vadodara
reiterated that the lands were of the
Government ownership. The said order was
challenged in appeal No.151 of 1980 before
the Revenue Tribunal, which was returned on
the ground of jurisdiction. The deceased
Mr.Desai preferred an appeal No.15 of 1989
before Collector, Vadodara, who by its
order dated 14.05.1983 dismissed the
appeal. After delay of seven years, the
said order was challenged in Revision
Application No.39 of 1990 before the
Revenue Tribunal, which came to be allowed
by judgment dated 29.11.1991 holding that
the land in question admeasuring 53 Vighas
and 17 Vasas was of ownership of
Mr.Mahendrakumar Desai.
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5.2 The said order of Gujarat Revenue
Tribunal was challenged by the Collector by
way of Special Civil Application No.6528 of
1992 before this Court. While this was
pending, the State filed Special Civil Suit
776 of 1992 in the Civil Court, Vadodara
challenging the legality of the said
decision dated 29.11.1991 passed by the
Gujarat Revenue Tribunal in Revision
Application No.36 of 1990 and prayed for
declaration and injunction in respect of
the land in question admeasuring about
1,28,073 square meters. The Division Bench
of this Court dismissed the Special Civil
Application No.6528 of 1992 because of
preferring of the suit being 776 of 1992.
By judgment and decree dated 21.03.1994 the
Civil Court, Vadodara dismissed the suit
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filed by the respondent No.1 State.
5.3 Aggrieved State challenged the said
judgment and decree by way of First Appeal
No.969 of 1994. The High Court by judgment
dated 07.05.2002 dismissed the First
Appeal. During the pendency of the First
Appeal, the respondent-State had preferred
Civil Applications seeking to produce
additional evidence on record of the First
Appeal to show that the Government owned
this land. These applications were numbered
of 2002 and 1150 of 2002. They were
dismissed by the High Court by different
orders. Aggrieved State had also challenged
the decision of First Appeal No.969 of 1994
and rejection of the Civil Application by
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preferring Special Leave being Civil Appeal
No.7898 of 2002 and 7900 of 2002 before the
Apex Court, where the Apex Court by its
judgment dated 10.04.2006 held that the
State was the owner of the land admeasuring
2 Vighas and 5 Vasas and accordingly put an
end to the entire dispute with regard to
the ownership accepting the claim of the
State for only limited area of 2 Vighas and
5 Vasas and confirming the ownership of
Mr.Desai for the remaining land of 53
Vighas and 73 Vasas.
5.4 Thus, this 1,22,718 square meters of
land had been held to be of the ownership
of the deceased Mr.Desai. The State also
preferred Review Application before the
Apex Court which was dismissed on
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11.07.2006.
5.5 While this contest was on,
Mr.Mahendrakumar Desai died in October 1995
leaving behind him several heirs and legal
representatives. He died intestate. It was
not in dispute that the said lands in
question were ancestral and coparcenery
properties.
5.6 After a lapse of about six years since
the death of Mr.Mahendrakumar Desai when
the proceedings were pending,
Mr.Jayantibhai Ramdas Patel staked the
claim as a legatee of having been
bequeathed the land in question in favour
of him by virtue of a Will dated
22.08.1995, purportedly signed by
Mr.Mahendrakumar Desai. He claimed
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testamentary succession on the basis of the
Will in his favour for the first time in
the year 2001, six years after the date of
the alleged Will and the death of
Mr.Mahendrakumar Desai on 31.10.1995. On
the basis of the said Will, he applied in
September 2001 the probate of the Will by
preferring Civil Misc. Application No.224
of 2001 in Civil Court, Vadodara. He chose
not to join any heirs or legal
representatives of Mr.Mahendrakumar Desai
and even the witnesses of the alleged Will
were not examined to prove the Will while
seeking the probate. The Court concerned
within a span of one month granted probate
of the Will in favour of the alleged
legatee Mr.Jayantibhai Ramdas Patel.
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5.7 After the probate was granted in
October 2001, three heirs of
Mr.Mahendrakumar Desai i.e. the petitioner
of Special Civil Application No.2923 of
2009, his widow and two sons Mr.Anant Desai
and Mr.Rakesh Desai filed Probate
(Revocation) Application No.23 of 2003
seeking revocation of probate. The Court
revoked the same on 02.09.2004.
5.8 However, since the name of the alleged
legatee Mr.Jayantibhai Ramdas Patel was
entered into the City Survey Record on the
basis of Probate Certificate, the deceased
Mr.Desai's heirs filed appeal against the
entry.
5.9 The defendant No.1-Jayantibhai Ramdas
Patel preferred a Special Civil Suit No.116
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of 2007 joining only three heirs in the
Civil Court, Vadodara praying that he be
declared as the sole and absolute owner of
the land in question. After almost two
years, since the order revoking the probate
had passed, the alleged legatee preferred
an application being Review Application
No.169 of 2006 seeking to review the order
of revocation of probate wherein he joined
these three heirs.
5.10 On the other hand, after the Apex
Court's judgment and order of 10.04.2006,
the State Government commenced proceedings
of requisition of land. The Notification
dated 25.01.2007 under Section 4 of the
Land Acquisition Act, 1894 ('the Act' for
short) was issued and it was followed by
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the declaration under Section 6 of the said
act. Mr.Desai's heirs seriously objected to
any disbursement in favour of Mr.Jayanti
Ramdas Patel and other persons. It appears
that Mr.Jayantibhai Ramdas Patel around
that time entered into alleged MoU on
09.04.2007 as claimed by the petitioners of
Special Civil Application No.1592 of 2009.
Actually, the same was signed on behalf of
three persons as the power of attorney
holder, who are the plaintiffs since Suit
No.308 of 2008 for apportionment of
compensation in ratio of 81.90% and 18.10%
amongst them and on the same day, a
compromise pursis was filed in the earlier
referred Special Civil Suit No.116 of 2007
which was disposed of on the same day on
the basis of the said compromise pursis.
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
The Review Application No.169 of 2006
preferred by Mr.Jayantibhai Ramdas Patel
was also allowed on the basis of the said
compromise pursis and the order passed in
Special Civil Suit No.116 of 2007.
5.11 A Suit being Special Civil Suit No.516
of 2008 was filed by two grandsons, who
also were petitioners in Special Civil
Application No.1592 of 2009 of deceased
Mr.Mahendrakumar Desai challenging the
capacity of the deceased Mr.Mahendrakumar
Desai to bequeath the ancestral property by
the alleged Will. In the said Special Civil
Suit No.516 of 2008 all the heirs, land
acquisition officers and Mr.Jayanti Patel
were joined as party defendants. The heirs
lodged objections against disbursement in
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favour of Mr.Jayanti Patel and claimed
right and interest in the land in question
and also sought reference under Section 30
of the Act. They lodged the protest on
various dates in the year 2008. However,
the Land Acquisition Officer passed the
award on 11.12.2008 under Section 11 of the
Act and determined the total compensation
payable in respect of the land in question
to the tune of Rs.33,33,15,552/- and since
the sum of Rs.23,48,82,252/- had already
been paid as ad-hoc advance payment, the
compensation of Rs.9,84,33,300/- remained
to be paid. They prepared the Treasury
Bills and facilitated the withdrawal of the
compensation amount and also obtained the
advance receipt from Mr.Jayanti Patel.
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
5.12 It emerges that on 30.12.2008
Mr.Jayanti Patel was paid Rs.8,06,16,873/-,
81.09% share fixed by MoU and 18.1% being
Rs.1,78,16,427/- out of the total sum of
Rs.9.84 Crore (rounded off) was initially
deposited in the Court, but the Land
Acquisition Officer subsequently reclaimed
the deposited amount. The petitioners of
Special Civil Application No.1592 of 2009
were intimated that the Reference under
Section 30 of the Act cannot be
entertained, they claimed that the award
dated 11.12.2008 when had culminated into
disbursement of compensation, a Reference
under Section 18 of the Act was preferred
by Mr.Jayanti Patel and Land Acquisition
Officer may not disburse higher
compensation.
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
5.13 It appears as mentioned above that CTS
Appeal had been preferred as Mr.Jayantibhai
Ramdas Patel had mutated his name as the
sole and exclusive owner of the land in
question. Direction had been sought that
the names of the petitioners also be
incorporated in Special Civil Application
20703 of 2007. It was also urged that they
be declared as entitled to receive
compensation at the rate of 18.10% out of
total compensation.
5.14 The Special Civil Suit No.308 of 2008
was to challenge the settlement on the
ground that the same was null and void. It
was also urged in the Special Civil
Application No.2923 of 2009 that the
sanction accorded to the draft award was
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subject to certain conditions and the
proceedings under Sections 30 and 31 of the
Act should be followed if any dispute
exists with regard to the title. At that
stage, a Writ Petition being Special Civil
Application No.6686 of 2008 also was
preferred praying inter alia that the order
dated 04.12.2007 be set aside and to hear
the petitioners and their objections as
well as for seeking directions against the
Land Acquisition Officer and others to
deposit Rs.4.20 Crore (rounded off) paid to
the heirs of the deceased Mr.Mahendrabhai
Desai and Rs.19.23 Crore (rounded off)
paid to Mr.Jayantibhai Ramdas Patel.
5.15 Special Civil Application Nos.1592 of
2009 and 2923 of 2009 also deserve
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reference at this stage. Special Civil
Application No.7242 of 2009 also deserves a
reference where it was contended that the
expert had opined the signature of alleged
Will is not of deceased Mr.Mahendrakumar
Desai. This entire challenge resulted into
this Court in Special Civil Application
No.1592 of 2009 holding that the recipient
of the disbursed compensation Mr.Jayaanti
Patel and heirs under the award under
Section 11 of the Act should return and
refund the amount. The Court also in no
unclear terms held that not only the
alleged legatee Mr.Jayantibhai Ramdas
Patel, but also the three heirs who have
been paid a part of the compensation should
return the amount so that after the
decision of the court, the compensation can
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be paid to the persons lawfully entitled
to. Necessary and appropriate directions
to the said effect had been given this
wise.
"14. As an upshot of the aforesaid discussion, in our
opinion, the following directions will meet with the
requirements and also fulfill the ends of justice. It is,
therefore, directed that :-
(a) the Respondent Mr.Jayantibhai R.Patel (i.e. the alleged
legatee who is respondent No.4 in SCA No.1592/2009 and
Respondent No.3 in SCA No. 2293/09) shall return-repay,
to the respondent No.2 LAO/Respondent No. 1 State
Government, within eight weeks from today, the
compensation amount of Rs.27,29,85,437/- and any other
and further amounts that he might have been paid by/he
might have received from the said respondents No. 2 &
No. 1 and the heirs of deceased Mr. Mahendrakumar P
Desai who have been paid/have received payment of
compensation to the tune of Rs. 4,25,13,688/- shall also
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
return-repay to the Respondent No.2. LAO /Respondent
No. 1 State Government, within eight weeks from today,
the said amount of Rs.4,25,13,688/- and shall also return-
repay any other/further amounts that they might have
received from the said respondents No.2 and No.1.
(b) it is open to the respondent No.1 State and the LAO
to take steps to reclaim and recover the disbursed
compensation from the alleged legatee Mr. Jayantibhai R.
Patel and the heirs/L.R.s of deceased Mr.Mahendrakumar
P. Desai i.e. the persons in whose favour the
compensation has been disbursed- paid.
(c) the respondent No.2 LAO and respondent No.1 State
shall deposit the compensation amount determined under
the award in the court competent to receive and try the
reference under the Act, within nine weeks from today.
(d) after such deposit the court shall invest the amount in
FD (cumulative interest) with a nationalized Bank, in the
name of Nazir of the court and shall continue to reinvest
the amount till the final decision in the suit proceedings
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of Special Civil Suit No.308/08 and Special Civil Suit
No.516/08 pending in Civil Court at Vadodara and also till
the decision in the reference.
(e) the LAO/Collector shall make reference under section
30 within 15 days from the date of receipt of this
judgment and order.
(f) the court shall try to complete the pending proceedings
of the 2 suits (Special Civil Suit No.308/08 and Special
Civil Suit No. 516/08) within 6 months.
In the result SCA No.1592/2009 and SCA No.2923/2009
are disposed off in terms of the aforesaid observation and
directions. Rules is made absolute to the said extent. In
the facts of the case there shall be no order as to costs.
At this stage, learned advocate for respondent
No.4 prays for stay of operation of this judgment to have
further recourse in accordance with law.
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
Since we have already granted eight weeks time
to deposit the amount, the request is rejected."
5.16 The Court disposed of Special Civil
Application Nos.1592 of 2009 and 2923 of
2009. The same was challenged before the
Apex Court, where the Court decided the
expeditious hearing of the Suit preferably
within a period of six months from the next
date fixed before the Civil Court and till
the decision of the matter, the interim
order passed by the Apex Court on
06.04.2010 had directed to be continued,
which is as follow:
"Heard.
Heard Dr. A.M. Singhvi, Mr. C.U. Singh and Mr.K.
Vishwanathan, learned senior counsel for the parties.
Matters are with respect to the disbursement of
compensation to the various rival claimants. Some civil
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suits and the matters before the land acquisition officer
which are stated to be pending considerations and this
court has also permitted on 6.4.2010 to make a reference
under Section 30 of the Land Acquisition Act, 1894 (in
short 'the Act'). This court after hearing learned counsel
for the parties, vide order dated 6.4.2010, has directed
that the land acquisition officer as well as civil court to
decide Special Civil Suit Nos. 521 of 2007, 308 of 2008
and 516 of 2008 and Land Reference Nos. 35 of 2009, 36
of 2009, 37 of 2009 and 55 of 2009 as expeditiously as
possible. Besides that at present reference under Section 30
of the Act is stated to be pending as per the order passed
by this court on 6.4.2010. In the circumstances, we
expedite the decision of the civil suits as well as the
reference court under Section 18 and the case made under
Section 30 of the Act. The interested parties are free to
join the pending proceedings/suit, as the case may be, for
determination of their entitlement.
Let the suit as well as the pending reference be
considered and decided expeditiously preferably within six
months from the next date fixed before the civil court. Till
the decision of the matters, the interim order passed by
this court on 6.4.2010, which is extracted hereunder, shall
continue:
"Delay condoned.
Exemption allowed.
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Applications for impleadment, intervention and to
bring on record the subsequent facts and additional
documents are allowed.
Permission to file lengthy list of dates is granted.
Leave granted.
The parties are directed to complete the pleadings
within four weeks.
In the meanwhile, we direct the appellant-Jayantibhai
Ramdas Patel to deposit Rupees two crores within
two weeks with the Land Acquisition Officer. The
amount be deposited in a FDR with a nationalised
Bank.
We also direct the Land Acquisition Officer and the
Civil Court to proceed with the cases. Pendency of
these appeals before this Court would not mean stay
of the proceedings before the Land Acquisition Officer
or the Civil Court.
By the impugned directions of the Division Bench of
the High Court, the Land Acquisition Officer shall
make Reference under Section 30 of the Land
Acquisition Act, 1894, within fifteen days. After the
Reference is made, the learned District Judge would
either hear the case himself or assign it to any other
court of competent jurisdiction.
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
We direct the Land Acquisition Officer and the Civil
Court to decide Special Civil Suit Nos. 521 of 2007,
308 of 2008 and 516 of 2008 and Land Reference
Nos. 35 of 2009, 36 of 2009, 37 of 2009 and 55 of
2009 as expeditiously as possible.
The appellants in Civil Appeals arising out of SLP(C)
No. 5071 of 2010 and SLP(C) No..../2010 (CC
2795/2010) would be at liberty to file the application
for impleadment and the same would be decided in
accordance with law after hearing learned counsel for
the parties.
The directions of the High Court directing the
parties to deposit the balance amount shall remain
stayed till further orders.
In case the amount, as directed, is not deposited, this
order would be of no avail to the appellant(s)."
In case the refund is required, the concerned incumbents
shall refund the amount after adjusting the amount
deposited pursuant to the order passed by this court on
6.4.2010, within a period of three months as may be
ordered by the concerned court. In case refund is not
made, it shall be treated to be violation of the directions
made by this Court.
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
The appeals are disposed of.
SPECIAL LEAVE PETITION (C) Nos. 26400-26401 of
These SLPs have arisen out of the W.P.(C) No.7242 of 2007.
Issue in this writ petition may be decided alongwith the
Special Civil Suit Nos. 521 of 2007, 308 of 2008 and 516 of
2008 and Land Reference Nos. 35 of 2009, 36 of 2009, 37
of 2009 and 55 of 2009 as the case may be on appropriate
prayer been made in this regard. Accordingly, special leave
petitions are disposed of."
It is quite clear that the Court had
directed initially the deposit of Rs.2
Crore to Mr.Jayantibhai Ramdas Patel and
the amount was to be fixed deposited with
the Nationalized Bank. The Court also
expedited the Suit to be adjudicated within
six months preferably. This order of the
Apex Court dated 26.04.2017 was prior to
the lodgment of the FIR on 07.08.2017 which
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gives chronological details of litigations
and the alleged forgery purported by
Mr.Jayantibhai Ramdas Patel and others.
6. In Special Criminal Application No.4390
of 2017 on 10.07.2017 the Investigating
Authority was asked to send a copy of the
Will to the FSL. It is apt to reiterate
that Criminal Misc. Application No.20809 of
2017 had been preferred on 14.11.2017 by
Mr.Jayantibhai Ramdas Patel for quashing of
the FIR which eventually was withdrawn.
7. On 23.11.2017, Special Civil Suit
No.372 of 2017 was preferred by the present
applicant on a cause of action as projected
by him that the opponent No.3-Jayantibhai
Ramdas Patel was acting contrary to the
alleged settlement deed dated 25.07.2008.
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The same has been suppressed in the present
proceedings.
8. Mr.Rakesh Desai-opponent No.8 preferred
Civil Suit No.227 of 2019 before the Court
of learned Senior Civil Judge, Vadodara
seeking declaration that decree dated
15.04.2016 passed in Special Civil Suit
No.207 of 2014 is null and void as was
passed upon a collusive and fraudulent
settlement between the parties. The said
suit is pending for adjudication and the
applicant is also a party defendant in the
said suit. On 30.09.2021 the order was
passed under Order VII Rule 11 of the Code
of Civil Procedure in Special Civil Suit
No.372 of 2017 preferred by the present
applicant which was rejected. On 11.10.2021
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
of 2021 filed by Mr.Desai against the order
under Order VII Rule 11 of the Code of
Civil Procedure are pending for
adjudication before this Court.
9. The moot question that requires to be
addressed is as to whether the present
applicant would have any locus in
approaching this Court and asking for grant
of leave for the purpose of challenging the
compromise decree arrived at by and between
the third party on the strength of the MoU
dated 25.07.2008. Admittedly, the said MoU
dated 25.07.2008 is between the applicant
and the opponent No.3. There is no privity
of contract with the Desai family. This
surely cannot be an armour to challenge the
compromise decree as the law does not
permit challenge of the compromise decree
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
so easily. Moreover, there are two suits
which are not referred to being Special
Civil Suit No.207 of 2014 and Special Civil
Suit No.245 of 2016. If one looks at
Special Civil Suit No.207 of 2014, the
present applicant Shankarbhai Keshubhai
Patel and four others namely Patel
Yogendrakumar Govindlal, Patel Dineshbhai
Shakrabhai, Patel Ramanbhai Dhulabhai and
Rajendra Narottambhai Barot have preferred
against the opponent No.3 Jayantibhai Ramdas
Patel and one Patel Amrutbhai Babalbhai for
specific performance under the law. If one looks
at the plaint, it speaks of the very land which
was owned by Mr.Desai admeasuring 1,28,073 square
meters and described as a suit land. The basis of
this suit is that the opponent No.3
Mr.Jayantibhai Ramdas Patel had carried out a
Banakhat in favour of Mr.Amrutbhai
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Babalbhai Patel (defendant No.1 in that
suit) on 08.05.1997. It was a Banakhat for
the amount of Rs.33.05 Crore. The defendant
No.1 of that suit was to be given 50.95% of
the share from the share of defendant No.2
Jayantibhai Ramdas Patel and defendant No.1
from out of this 50.95% share he was to get
from Mr.Patel had given 36% of that share
to all the plaintiff and such a Banakhat on
16.11.1998 had already been executed. The
sale consideration of Rs.3,75,000/- had
been given in cash and Rs.12.11 Crore was
decided to be the amount which was 36%
share of all the plaintiffs. After once the
title was cleared they were to pay Rs.12.07
Crore to the defendant No.1. The share in
favour of the present applicant-Shankarbhai
Keshubhai Patel was 19%. It is the say of
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the present applicant in another set as per
condition No.10 of the said Banakhat the
limitation was of getting the clearance of
the title. It further makes a mention of
the Special Civil Suit No.320 of 2013
preferred by Mr.Jayantibhai Ramdas Patel
before the Court of learned Senior Civil
Judge, Vadodara for declaration and
injunction.
10. It is also notable at this stage when
the question is with regard to the concept
of aggrieved party, the locus standi of a
person will need to be considered. This
Court in case of Patel Vinodbhai Khodidas
vs. Patel Pravinbhai Kacharabhai was
considering the concept of aggrieved party
and also was examining the locus standi. It
was a case of suit for specific performance
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where compromise decree had been entered,
the applicant was not a party to the suit.
He sought permission to file a leave to
appeal. It has been held by the Court that
in order to be entitled to prefer an
appeal, a person must be one who can be
said to be aggrieved against the judgment
and this aggrievement has to be a legal
aggrievement where the aggrieved person
could be said to be prejudicially affected
to permit him to prefer an appeal even if
he is not a party to the suit proceedings.
His interest must be appealable interest.
Party which would be benefited because of
the change in the judgment by redressal of
legal injuria, is said to have an
appealable interest. The Court held that
the change in the judgment prayed to be
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appealed against by the third party, when
brings an immediate right or legal benefit,
then the person can be said to be having
appealable interest, this should not be
contingent, speculative or futurative. The
appealable interest must be substantial and
immediate. The applicant who claims to have
the interest on the basis of the agreement
to sell, could not be said to be holding
any interest in the property to be within
the definition of legally aggrieved or
prejudiced persons and thus he was not held
to be 'aggrieved party' vis-a-vis the
compromise decree having regard to the
legal status. The Court held that there is
no appealable interest in connection with
the compromise decree.
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10.1 In case of Patel Vinodbhai
Khodidas (supra) this Court has held thus:
"xxx
(2) The precise question that falls for consideration is
whether in the facts of the case the applicants herein,
who were not party to the suit which resulted into
compromise decree between the parties to the suit, could
be said to be 'aggrieved person' to be entitled to be
conferred right to appeal and to be consequentially
granted leave to appeal.
Xxx
(9) Having discussed the principles of law as above
and particularly considering the concept of 'aggrieved
person' to be entitled to enjoy the right to appeal, now
the basic facts of the case may be recapitulated and
reverted to. The plaintiff Patel Pravinbhai Kachrabhai of
Special Civil Suit No.31 of 2012 had executed agreement
to sell dated 05th August, 2008 in respect of the subject
matter property involved in the above Special Civil Suit
for specific performance between the plaintiff and the
defendants in favour of one Patel Bharatkumar and three
others. This Bharatkumar and three others, subsequently
on 09th December, 2008 executed another document being
agreement for sale in favour of the present applicants.
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When the suit was compromised between the parties to
the suit, the applicants on the basis of the above
agreements dated 05th August, 2008 followed by 09th
December, 2008 claimed their interest to project
themselves as the party aggrieved qua the compromise
decree.
(9.1) In other words, what is fundamental is that in order
to be entitled to prefer an appeal, a person must be one
who can be said to be aggrieved against the judgment.
This aggrievement has to be a legal aggrievement where
the aggrieved person could be said to be prejudicially
affected to permit him to prefer appeal even if he is not a
party to the suit proceedings. He must have an appealable
interest. A party who would be benefited because of the
change in the judgment by redressal of legal injuria, is
said to have an appealable interest. The change in the
judgment prayed to be appealed against by the third
party, when brings an immediate right or legal benefit,
then the person can be said to be having appealable
interest. This appealable interest should not be contingent,
speculative or futurative. The appealable interest must be
substantial and immediate.
(9.2). In order to acquire the status of aggrieved party,
the person must have legal interest and an enforceable
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right which would in turn allowing him to question the
decree or order by preferring appeal, though he may not
be a party to the suit or proceedings. The applicants who
claim their interest on the basis of the agreements to sell
as above could not be said to be holding any interest in
the property to be within the definition of legally
aggrieved or prejudiced persons. As the applicants are not
'aggrieved party' vis-a-vis the compromise decree having
regard to their legal status, they could not be clothed
with right to appeal. They do not have 'appelable interest'
in connection with the compromise decree.
10. The present applicants do not qualify on facts and in
law to be the aggrieved persons to be entitled to question
the compromise decree between the parties to the said
Special Civil Suit by preferring appeal there against.
Whatever rights the applicants can claim on the basis of
agreement to sell in their favour, they have to establish
such rights and the enforceability thereof in an
independent proceedings by filing separate suit. The leave
to appeal cannot be granted to the applicants."
Examining from the various decisions of the
Apex Court as to whether the applicant
could be said to be a aggrieved party for
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him to be permitted leave to appeal, answer
is undoubtedly in negation.
11. The basic fact of the case when are
reverted to, they would make it abundantly
clear that the applicant had a knowledge of
pendency of various decisions. The MOU
itself which is alleged to be absolutely
fraudulent dated 25.07.2008 makes a mention
of the litigations between the parties.
There appears to be a clear suppression of
details of two suits being Special Civil
Suit Nos.207 of 2014 and 245 of 2016 as
rightly urged on behalf of the original
plaintiffs, learned senior advocate,
Mr.Asim Pandya that various proceedings
have been referred to in the MoU. The
applicant is a purchaser of the litigation
and his rights are independent. He ought to
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
have protected his rights which he claims
to have been assigned by Mr.Patel. The
Reference before the Land Reference Court
was in the year 2008, the issue of
apportionment was also at large before the
Reference Court under Section 30 of the
Act, the award has come on 08.03.2022
pending this leave to appeal. 2008 onward,
he was a fence sitter who never preferred
any application also.
12. It is to be remembered that on
31.12.2008 the final award in Land
Reference Case has come. It is also a
point-worth noting that in Special Civil
Suit No.207 of 2014, the Banakhat of
16.11.1998 speaks of 19% share of the
present applicant. Earlier proceedings were
already pending before he actually entered
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
into this. Section 54 of the Transfer of
Properties Act will need to be taken into
consideration, there is no explanation
worth the name as to why for all these
years, what prevented him from joining
himself as a party, as an assignee of the
interest. The least he could have done was
to approach the Court below knowing fully
well that there was a pendency of the
special suits which had been directed by
the Apex Court to be decided in stipulated
time period.
13. This appears to be a clear design on
the part of Mr.Jayantibhai Ramdas Patel who
per-force has gone out of the compromise by
saying that he will not be asking for any
share while introducing possibly on his
behalf, the opponent Nos.21 and 24 in the
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original suit. It is also noteworthy that
the Division Bench of this Court had
directed in Special Civil Application
No.1592 of 2009 and allied matters the
deposit of the entire amount which had been
given to him by the Land Acquisition
Officer. However, out of that Rs.33 Crore
that he received, only Rs.2 Crore had been
thereafter deposited by him because of the
Apex Court's order. When he challenged the
said decision of this Court in Civil Appeal
No.3224 of 2010, the Apex Court stayed the
order of the Division Bench and directed
the suit to be proceeded within a period of
six months. Unfortunately, in that suit the
compromise had been arrived at where the
choice possibly between the family was of
devil or the deep sea and hence, it has
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
permitted him to retain the amount which he
had with him as there is no mention of such
amount which otherwise he was directed to
be refunded and we have confirmed this
aspect from the senior advocate, Mr.Asim
Pandya. After his retaining this amount,
70% share has been taken by the two
outsiders whom the plaintiffs themselves
have allowed to enter because of their
political clout. On noticing actual purport
of such action, the Court is much at pain
to note that this litigation of number of years
is stretched beyond imagination by those who are
court birds and such protracted litigation has
capacity to tire the genuine litigants who then
fall prey to such temptation of ending the
disputes as has happened in the instant case. It
is though ostensibly a genuine and
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
permissible compromise under the law. On
reading between the lines, prima facie, it
seems to be the attempt largely to wriggle
out of the clutches of such elements,
possibly born out of misery, helplessness
and frustration as no light of justice at
the end of long tunnel of litigation
probably was visible. However, the
applicant being that cause, essentially, he
surely is not the party which deserves any
entertainment to allow him the leave to
prefer appeal and question the decree. If
he has any cause to pursue, he can take his
own recourse under the law and he would
know in what way to pursue the same without
this court needing to spell the same out
explicitly.
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
14. Resultantly, this application is
rejected in view of the foregoing
discussion with the cost of Rs.5,00,000/-
(Rupees Five Lakh Only) which shall be paid
to the heirs of late Mr.Mahendrakumar
Purshottambhai Desai.
15. None of the findings and observations
shall prejudice the right of the litigants
nor would they shall come in the way of the
parties in pending litigation.
(SONIA GOKANI, J)
(HEMANT M. PRACHCHHAK,J)
M.M.MIRZA
