Gujarat High Court
Lh Of Late Mangabhai Vashrambhai vs Hiraben Wd/O Kalidas Somabhai on 6 January, 2023
Bench: Ashutosh J. Shastri
C/LPA/10/2023 ORDER DATED: 06/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 10 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 8292 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/LETTERS PATENT APPEAL NO. 10 of 2023
With
R/CIVIL APPLICATION NO. 2627 of 2022
In
LETTERS PATENT APPEAL NO. 10 of 2023
With
R/CIVIL APPLICATION NO. 33 of 2023
In
LETTERS PATENT APPEAL NO. 10 of 2023
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LH OF LATE MANGABHAI VASHRAMBHAI
Versus
HIRABEN WD/O KALIDAS SOMABHAI
==================================================
Appearance:
MR JIGAR P RAVAL(2008) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,3,4,5,5.1,5.2,5.3,5.4,5.5,5.6,6
MS SHRUNJAL SHAH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 7,8,9
MR GAUTAM JOSHI, SENIOR ADVOCATE WITH
MR AS ASTHAVADI(3698) for the Respondent(s) No. 1,2,3,4,5,6
==================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 06/01/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR)
1. The correctness and legality of the order dated 10.3.2022
passed in Special Civil Application No.8292 of 2019 is under
C/LPA/10/2023 ORDER DATED: 06/01/2023
challenge in Letters Patent Appeal No.10 of 2023 filed by the
legal heirs of late Mangabhai Vashrambhai contending, inter
alia, that by virtue of the order passed by the learned Single
Judge, their names have been struck off in the revenue records
relating to Survey No.604/1, situated at Village: Sarkhej,
District: Ahmedabad and contending, inter alia, that they were
not made parties in Special Civil Application though, their right
is affected. It is also contended by learned advocate appearing
for the applicants / appellants Mr. Jigar P. Raval that appellants
being necessary and proper parties to the proceedings before
the learned Single Judge and they having not been arrayed as
parties and by virtue of the order passed by the learned Single
Judge, names of the appellants which were reflecting in the
revenue records having been struck off or deleted, they would
be necessary and proper parties to the proceedings. Hence, they
have sought leave to appeal.
2. Per contra, Mr. Gautam Joshi, learned Senior Advocate
appearing for the respondents viz. writ applicants would submit
that since there is already decree passed against the applicants,
it was only implementation of said decree by the revenue
C/LPA/10/2023 ORDER DATED: 06/01/2023
authorities and there was no need or necessity for the
applicants / appellants being joined as parties to the
proceedings before the learned Single Judge and as such, he
prays for rejection of the application and consequently the
appeal also.
3. Learned advocates appearing for the parties have also
drawn the attention of the Court to the pleadings laid before
learned Single Judge and appeal papers and on perusal of the
case papers, we are of the considered view that applicants /
appellants would be necessary and proper parties to the
proceedings, inasmuch as, writ applicants have sought for
mutating the revenue records in respect of Survey No.604/1
referred to hereinabove supra by virtue of judgment and decree
dated 31.12.2008 passed in Regular Civil Suit No.218 of 1985 as
affirmed by the appellate Court by judgment and decree dated
16.10.2018 in First Appeal No.14 of 2012. In both these
proceedings, appellants / applicants were parties. That apart,
names of the applicants / appellants were appearing in the
revenue records insofar as Survey No.604/1 is concerned till
their names were deleted by virtue of judgment and decree
C/LPA/10/2023 ORDER DATED: 06/01/2023
passed by Civil Court. Hence, we are of the considered view
that appellants / applicants are necessary and proper parties
and as such, application filed by them seeking leave of this
Court to challenge the order passed by the learned Single Judge
deserves to be allowed and accordingly, Civil Application
No.2627 of 2022 is allowed.
4. There is a delay of 83 days in filing the appeal. Cause for
delay has been explained in the application in paragraph 3
which would constitute sufficient cause as held by the Hon'ble
Apex Court in the case of Collector, Land Acquisition,
Anantnag vs. Katiji, reported in AIR 1987 SC 1353. Hence,
in the interest of justice, delay stands condoned and Civil
Application No.33 of 2023 is allowed.
5. Now turning our attention to the core issue viz. as to
whether the order of the learned Single Judge requires to be
sustained or modified or set aside, our answer to the said
question would be in favour of the writ applicants, i.e. against
the appellants / applicants partly, for the reasons indicated
hereinbelow.
C/LPA/10/2023 ORDER DATED: 06/01/2023
6. The case on hand would clearly disclose that in repsect of
land bearing Survey No.604/1 which is the subject property was
also the subject matter of Regular Civil Suit No.218 of 1985,
wherein the appellants herein were also parties viz. defendants.
The said suit after contest came to be decreed by the judgment
and decree dated 31.12.2008. Being aggrieved by the same, the
appellants herein carried the same in First Appeal No.14 of
2012 resulting in decree of that court being affirmed by the first
appellate Court by judgment and decree dated 16.10.2018. Said
judgment and decree is now said to have been carried by the
appellants herein by filing Second Appeal No.36 of 2018 which
is said to be pending for admission. Any entry made in the
revenue records would be subject to result of civil proceedings.
There being a judgment and decree passed in favour of the writ
applicants and revenue authorities having mutated the revenue
records accordingly, no fault can be found in the exercise
undertaken by jurisdictional Mamlatdar at this juncture. Such
entry would necessarily be subject to the result of Second
Appeal No.36 of 2018.
C/LPA/10/2023 ORDER DATED: 06/01/2023
7. With these observations, appeal stands dismissed. We
make it clear that we have not expressed any opinion on merits
and pending applications if any stand consigned to records.
(ARAVIND KUMAR,CJ)
(ASHUTOSH J. SHASTRI, J)
Bharat
