Niruben Naranbhai Ishwarbhai ... vs Yamunadutt Amilal
2023 Latest Caselaw 4403 Guj

     C/SCA/22853/2022                           ORDER DATED: 13/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 22853 of 2022
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                NIRUBEN NARANBHAI ISHWARBHAI DANTANI
                               Versus
                         YAMUNADUTT AMILAL
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Appearance:
ADVOCATE NAME DELETED for the Petitioner(s) No. 1,2
MR NISHITH P THAKKAR(2836) for the Petitioner(s) No. 1,2
 for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,28,29,8,9
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 27
MR ADITYASINH JADEJA, AGP for the Respondent(s) No.27
MR ANSHIN H DESAI, SR ADV with MR PREMAL S RACHH(3297) for the
Respondent(s) No. 1,2,3,4,5,6,7
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                           Date : 13/06/2023
                            ORAL ORDER

1. The present Special Civil Application is filed for the following reliefs:-

"7(A) Your Lordships may further be pleased to admit and allow the present petition.

(B) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction and thereby be pleased to quashed and set aside the order dtd. 7/11/2022 passed in Revision Application/ AMD/316/2022;

(C) Your Lordships may further be pleased to stay the implementation, execution, operation of the order dtd. 7/11/2022 passed in Revision Application/AMD/316/2022 and be further pleased to stay the further proceedings likely to be proceeded in Revision Application/AMD/316/2022, pending before

C/SCA/22853/2022 ORDER DATED: 13/06/2023

Secretary, Revenue Tribunal, Ahmedabad, Multistoried Building, Lal Darwaja, Ahmedabad, in the interest of justice;

(D) Your Lordships be pleased to grant such other and further relief[s as deemed fit in the interest of justice."

2. It is submitted by the learned counsel for the petitioner that by the impugned judgment and order, the application for joining party in the proceedings pending in Revision No. AMD/316/2022 before the Gujarat Revenue Tribunal has been dismissed.

3. The brief facts in the present case is that the land bearing Survey No.212 situated at Bodakdev, Taluka: Ahmedabad admeasuring 3 acres 00 gunthas was registered in the name of late Budhalal Chotalal Jhaveri who by way of two registered sale deeds transferred the land in favour of the father of respondent No1 and father of respondent Nos.2 to 4 whose name came to be entered as joint owners in the revenue record since the year 1977. On 26.02.1980 since then the answering respondents are in lawful ownership and possession of the aforemenioned survey No.212. It is further the case that thereafter on 18.10.2018 the said respondents and other joint owners applied for change of use of land bearing survey No.212

C/SCA/22853/2022 ORDER DATED: 13/06/2023

for non-agricultural purpose before the District Collector, wherein, the District Collector vide its order was pleased to grant NA permission in favour of the said respondents. That thereafter on 15.02.2020, the present petitioners through their power of attorney challenged the order granting NA permission by filing a Revision Application and stay application before the Revenue Department (Appeal) raising a contention that the original owner namely Budhalal Chotalal Jhaveri had executed a notarized will in the year 1987 in favour of the late Narangbhai Dantani, the father of the petitioner. It appears that the proceeding under Section 84 (C) of Gujarat Tenancy and Agricultural Lands Act was initiated by the Mamlatdar and ALT, Ghatlodhiya against the respondent No.3 and others in respect of land bearing Survey No.48 situated at Mauje- Ambli, Taluka: Ghatlodhiya, Ahmedabad vide order dated 04.02.2019 and confirmed by the Deputy Collector vide order dated 29.11.2021 in suo moto revision. The respondent No.3 and others therefore preferred Revision Application No.316 of 2022 before the Gujarat Revenue Tribunal on the ground that no notice was served upon the respondent No.3 with regard to initiation of proceedings under Section 84(C) of the Act by the revenue

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authority. The petitioner herein filed an application under order 1 rule 10 of the Code of Civil Procedure, 1908 for impleadment as a third party through their power of attorney holder in his individual capacity. The learned Gujarat Revenue Tribunal after hearing both the sides was pleased to reject the application filed by the power of attorney holder of the petitioners herein. The petitioners aggrieved by the said order dated 07.11.2022, impugned herein, have preferred the present Special Civil Application. It is submitted by the learned counsel for the petitioner that the learned Tribunal did not consider the aspect that the original applicant Yamunadatt Amilal and others were not agriculturists and that they have inserted their names in the revenue records by manipulation. It is further submitted that the original applicants were not farmers and they have not attained such rights from their ancestral hierarchy, but, they have wrongly shown themselves as beneficiary of the will of other farmer and thereby they have claimed their identity as a farmer which is not legal and permissible in law. He further submitted that the learned Deputy Collector has examined the issue related to the land situated at Survey No.48 Mauje Ambli, Taluka: Ghatlodhia. That the Deputy Collector has declared

C/SCA/22853/2022 ORDER DATED: 13/06/2023

the original revisionist Yamunadatt Amilal and other as not farmers. He further submits that the said revisionists have further purchased the agricultural land bearing Survey No.212, Bodakdev on the basis of such status as farmer and thereby took illegal benefit. It is submitted that the present petitioners are beneficiary of a will executed by the original owner Budhalal Chotalal Jhaveri in favour of their father in respect of survey No.212, Bodakdev. The petitioners herein therefore submit that they were necessary parties to the revision petition preferred by respondent No.1 to 7. He submits that by the impugned order, the learned Tribunal has wrongly dismissed the application for joining as party. He, therefore, submits that the present Special Civil Application be allowed and the impugned order be set aside and the petitioners be joined as parties/respondents in the Revision No. AMD/316/2022.

4. Per contra, learned senior counsel Mr. Anshin H. Desai along with learned counsel Mr. Premal Rachh appearing on caveat submits that by the impugned order two applications for joining party came to be dismissed. One of the application was preferred by the petitioners herein. Another application was preferred by another third party being legal heirs of late Madhaji Mafatji Dhanaji

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Madhaji Thakor. Both the applications were disposed of by the common impugned order. He further submits that the legal heirs of late Madhaji Mafatji Dhanaji Madhaji Thakor had challenged the impugned order by way of Special Civil Application No.25812 of 2022 before this Court which came to be dismissed by a reasoned order dated 03.04.2023. He submits that since both the petitioner herein as well as the petitioner in Special Civil Application No.25812 of 2022 are similarly placed and being third party having no interest in the land in question, the present Special Civil Application be also dismissed in terms of the order dated 03.04.2023.

5. Heard the learned counsel for the parties and perused the documents on record.

6. In the present case, it is not disputed that the petitioners are similarly placed as the writ-petitioners in Special Civil Application No.25812 of 2022 being third parties to the revision proceedings before the learned GRT. It is further admitted by the learned counsel for the petitioner that the present petitioners have no interest in Survey No.48 at Maoje: Ambli situated at village-Ambli, Ghatlodhia, Taluka Ahmedabad which is the subject matter

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in the revision proceedings before the learned Gujarat Revenue Tribunal.

7. This Court in Special Civil Application No.25182 of 2022 has observed as follows:-

"19. It would therefore be necessary to refer the provisions of Order 1 Rule 10 of the Code of Civil Procedure, 1908 which reads as under:-

"Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted throught a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.-- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joinded, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing

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without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.

--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

20. The Apex Court and this Court has held in the following decisions the criterias in which a person can be impleaded as necessary and proper party.

(1) In case of Mumbai International Airport Private Limited Vs. Regency Convention Centre And Hotels Private Limited reported in 2010 (7) SCC 417, the Apex Court while considering the provisions of the Order 1 Rule 10 of the Code of Civil Procedure, 1908 for an application to implead as a party in Civil Suit in the facts of the said case, held that if a non-party makes an application seeking impleadment as a proper party, has no interest title or right in the land in question then such party cannot be considered either as a necessary party or a proper party.

(2) Similarly in case of Kasturi Vs. Lyyamperumal reported in 2005 (6) SCC 733, the Apex Court held that the respondent in the said case had no direct interest in the suit for specific performance because they were not party to the contract nor they claim any interest from the parties to the litigation and

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jurisdiction of the Court to add an applicant shall arise only when the Court finds that such an applicant is either the necessary or a proper party and stranger to the contract is not entitled to join as party in the suit.

(3) This Court in case of Noormohmad Hajishama Vs. Anand Mohan Bhardwaj reported in 1981 GLR 332, while considering the application made in a suit filed for declaration that the plaintiff is absolute owner of the disputed eavacue property then the question whether the particular property is evacuee property is between the plaintiff and the Government, it was held that the allottee is neither a necessary nor a proper party to the suit."

8. In view of the aforesaid reasons and observations, no interference is called for in the impugned judgment and order. The present Special Civil Application is devoid of merits. Accordingly, the present Special Civil Application is dismissed. No order as to costs.

(ANIRUDDHA P. MAYEE, J.)

Manoj Kumar Rai