Gujarat High Court
Bhavin Mehta vs Paksh Developers Private Limited on 8 September, 2023
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/CA/610/2023 ORDER DATED: 08/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 610 of 2023
In
R/FIRST APPEAL NO. 4057 of 2023
With
R/CIVIL APPLICATION NO. 722 of 2023
In
FIRST APPEAL NO. 4058 of 2023
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BHAVIN MEHTA
Versus
PAKSH DEVELOPERS PRIVATE LIMITED
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Appearance in Civil Application No.610 of 2023:
MR AS VAKIL(962) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
SERVED BY RPAD (N) for the Respondent(s) No. 2,3
MR SAURABH SOPARKAR, SENIOR ADVOCATE for THAKKAR AND
PAHWA ADVOCATES(1357) for the Respondent(s) No. 6
Appearance in Civil Application No.722 of 2023:
MR PERCY KAVINA, SENIOR ADVOCATE with MR NIRAJ V ASHAR (2562)
for the Applicants
MR SAURABH SOPARKAR, SENIOR ADVOCATE for THAKKAR AND
PAHWA ADVOCATES(1357) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 08/09/2023
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of present applications, leave is sought to
challenge the judgment and decree dated 31.3.2023 passed by
learned Principal Senior Civil Judge, Kalol in Special Civil Suit
No.32 of 2019.
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2. Both these applications for leave to appeal are arising out
of same suit proceedings, i.e. Special Civil Suit No.32 of 2019
decided on 31.3.2023, and since common question of law and
facts are arising, except land description since everything is
similar, with request of learned advocates appearing for the
parties, both these applications are taken up for hearing
conjointly. For sake of convenience, Civil Application No.610 of
2023 is treated as a lead matter.
3. So far as Civil Application No.610 of 2023 is concerned,
facts in nutshell are that applicant is owner of Jaspur lands
under various registered sale deeds ranging from 23.7.2020
onwards with respect to Block/ Survey numbers, details whereof
are stated in paragraph 2.6, which we deem it proper to quote
hereunder:-
"Sale Deeds of Applicant in respect of Jaspur lands:
2.6. The applicant is the owner of Jaspur lands under various
registered sale deeds as follows:
Sr. Block/ Date of Registered Sale Name of the Vendor
No. Survey Nos. Deed
1 739 23.07.2020 (Copy at Viral Jayeshbhai Shah
Annexure-6 hereto)
2 740/A 03.11.2020 (Copy at Jayeshbhai Ramanlal
Annexure-7 hereto) Shah
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3 741 03.11.2020 (Copy at Mansiben Jayeshbhai
Annexure-8 hereto) Shah
4 742 28.03.2021 (Copy at Jaspur Samudayik
Annexure-9 hereto) Sahakari Kheti Mandali
Limited
5 736/A 23.07.2020 (Copy at Viral Jayeshbhai Shah
Annexure-10 hereto)
6 736/C 28.03.2021 (Copy at Viral Jayeshbhai Shah
Annexure-11 hereto)
7 744 23.07.2020 (Copy at Viral Jayeshbhai Shah
Annexure-12 hereto)
4. On the basis of the aforesaid registered sale deeds,
applicant is owner and occupier of various survey numbers as
mentioned of the lands which are situated at Jaspur and
according to applicant, same is not being disputed, execution of
such registered sale deeds was after publishing public notice
and when no objections were received pursuant to such public
notices, much less by respondent No.6, who is original plaintiff,
applicant became owner and is in physical possession of the
land right from that day even till today and upon such lands,
over certain portions, even constructions have also been made.
These registered sale deeds have also been effected to in the
relevant revenue record and revenue entries have also been
mutated based upon these transactions.
5. Opponent No.6 herein, i.e. Sterling Greenwood Ltd., had
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filed a civil suit somewhere around in March 2019 in the Court
of learned Civil Judge (S.D.) Kalol and to substantiate the claim
made in paragraph-10, an assertion has been made in
paragraph-10 and based the claim on the basis of report dated
31.10.2018 of one Chartered Accountant Mr. Dilip P. Shah. A
list of survey numbers and block numbers of the lands situated
at Jaspur as well as Bhimasan, Taluka Kalol has been narrated
in the suit. The suit was later on tried after framing the issues at
Exh.29 and the suit came to be allowed by judgment and order
dated 31.3.2023, operative part thereof is reproduced
hereunder:-
"2.3 The Trial Court was pleased by the impugned judgement and
decree to allow the Suit and ordered as follows:
"1. The present suit of the Plaintiff Company is hereby ordered to
be allowed.
2. It is hereby declared that Board Resolution as passed in MoM
dated 18.12.2009 by the Board of Directors including the
defendant No.2 to 5 and subsequently executed the MoU dated
19.12.2009 regarding two projects/land parcel namely (1)
Greenwoods Sarovar City (Village: Vichiya & Kuvar, Taluka
Sanand, District Ahmedabad) and (2) Greenwoods Farms Thol
(Village Bhimasan Taluka Kalol, District Gandhinagar) in the
favour of the defendant No.1 Paksh Developers Pvt. Ltd. owned
by the defendant No.5 Mr. Anurag Agarwal as a Director is
hereby declared as illegal, null, void ab initio, non est.
3. Defendant No.1 and 5 are hereby directed to hand over the
possession of (2) Greenwoods Farms Thol (Village Bhimasan,
Taluka Kalol, District Gandhinagar) land parcels consisting and
averred in para 10 of the suit:
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1. JASPUR LAND DETAILS AS SHOWN IN BOOKS
Particulars Block/ Area Sq. Meters Area Sq. Yards
Survey number
739 8600 10286
740/A 7184 8592
741 8094 9680
742 11938 14278
736/A 4047 4840
736/C 1012 1210
743 1619 1936
756 11635 13915
744 6981 8349
TOTAL 61110 73088
2. BHIMASAN-KALOL LAND DETAILS
4. The Defendant themselves and their agents, power of attorney
men, servants, assignees are hereby permanently by way of
permanent injunction restrained not to transfer, assign,
alienate, create right of any third person, agent, servants, men,
power of attorney in the suit property more particularly
property as averred in para 10 of the suit which is as:
1. JASPUR LAND DETAILS AS SHOWN IN BOOKS.
Particulars Block/ Area Sq. Meters Area Sq. Yards
Survey number
739 8600 10286
740/A 7184 8592
741 8094 9680
742 11938 14278
736/A 4047 4840
736/C 1012 1210
743 1619 1936
756 11635 13915
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744 6981 8349
TOTAL 61110 73088
2. BHIMASAN-KALOL LAND DETAILS
5. Defendants shall bear the cost of the plaintiff suit as well as
their own cost of the suit.
6. Decree be drawn accordingly."
6. It the case of applicant that based upon this judgment and
decree dated 31.3.2023, original plaintiff, i.e. opponent No.6
herein, applied before revenue authority for mutating the entry
of said judgment and decree and on 10.5.2023, said application
was submitted, on the basis of which mutation entry No.831
dated 1.6.2023 was made in respect of lands which are situated
at village Bhimasan. This revenue entry, according to applicant,
also includes the lands which are situated at Jaspur belonging to
the present applicant. Certified copy of the judgment and
decree was applied on 3.6.2023, which was received on
7.6.2023, and upon perusal of said judgment and decree, it has
been clearly found that applicant would be directly and
prejucially affected by the outcome of said judgment and order
to which applicants were not joined as party and hence, since
direct bearing upon the legitimate rights of applicant with
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respect to lands belonging to him, and being a person
aggrieved, has brought the present application for the reliefs
which are set out in paragraph-5 of the application. The
application is submitted along with memo of substantive appeal.
7. Upon perusal of the averments which are made in the
application, the Court issued notice vide order dated 21.7.2023
and later on, has come up for consideration before this Court for
hearing. In the meantime, revenue entry which was made at the
instance of the original plaintiff though requested not to
precipitate any action for its certification, said entry got
certified and hence, a serious apprehension is voiced out by
learned counsel appearing for applicant that if this is taking
place during pendency of present proceedings, applicant is also
apprehending that under the garb of impugned judgment and
decree, the opponent- original plaintiff may disturb even the
possession and as such requested for peremptory hearing.
Based upon such prevailing situation, at the request and with
consent of learned advocates appearing on behalf of respective
sides, matter is taken upon for hearing by this Court.
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8. Learned advocate Mr. A.S. Vakil appearing on behalf of
the applicant has vehemently contended that applicant is a
registered owner of the lands in question as narrated in the
application, precisely lands named as "Jaspur land", and by
virtue of this impugned judgment and order, applicant is
directly and substantially affected and though he is a lawful
owner of the land in question through registered sale
transactions took place after following procedure and is in
physical possession as on date as well, there is likelihood of
clear prejudice to the applicant if this impugned judgment and
order is not allowed to be challenged. Further, it has been
mentioned that these sale transactions by virtue of which
applicant is owner of the land and is in physical possession and
by virtue of direction which has been contained, more
particularly paragraph-3 of the operative part of the order, and
if no interim measure is provided to protect the possession of
applicant similar in the manner in which revenue entries have
been effected at the instance of original plaintiff, possession is
also likely to be interfered with and as such keeping in view the
overall circumstances, it is desirable that leave deserves to be
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granted in the interest of justice. Additionally, to support his
submission, learned advocate Mr. Vakil has drawn our attention
to one of the decisions delivered by Division Bench of this Court
in Civil Applications, led by Civil Application No.1345 of 2020,
decided on 5.10.2021, almost on similar line and after drawing
attention to the broad proposition laid down by the Division
Bench of this Court, has submitted that the case of applicant is
squarely falling within such parameters which deserve leave to
be granted in this peculiar background of facts.
9. Further, it has been submitted that entire case of the
original plaintiff is based upon report of a Chartered Accountant
which cannot in any way confer right or ownership in the
property, however same is the subject matter of merit of the
main appeal. Without much dwelling into it, Mr. Vakil has
submitted that this is a fit case in which leave deserves to be
granted. Further, it has been contended that here is a case in
which resolution appears to have been passed in the name of
'Draft Resolution for Transferring the Business', same is dated
10.12.2019. Whereas, claim which is now tried to be generated
is by submitting the civil suit based upon the opinion of
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Chartered Accountant. So, practically, right from 2009 to 2018,
nothing further has precipitated and suddenly, suit is brought
before the Court and according to Mr. Vakil, in a hot hurried
manner, proceedings of the suit have been finally dealt with.
Hence, in view of the fact that applicant is seriously prejudiced,
directly affected and his rights are clearly entangled in the
present proceedings which relates to judgment and decree
impugned, leave deserves to be granted in the interest of justice
to prefer an appeal.
10. Insofar as Civil Application No.722 of 2023 filed by one
Mr. Hem Jayendrakumar Patel and Shaishavi Pradipkumar Patel
is concerned, applicants are owners and occupiers of land
bearing Block No.69 (Block No.90) of village Bhimasan, Taluka
Kalol, District Gandhinagar, admeasuring 8422 Sq. Mtrs. and
they have purchased from original owners through registered
sale transaction on 11.10.2021, bearing Registration No.14065
of 2021 and this sale transaction, according to the applicants,
has been mutated in the revenue record vide entry No.746
dated 3.12.2021 which also came to be certified on 23.2.2022. It
has come to the notice of applicants that with respect to several
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survey numbers of village Jaspur and village Bhimasan,
respondent No.1- original plaintiff had filed Special Civil Suit
No.32 of 2019 before learned Principal Senior Civil Judge at
Kalol for seeking declaration and permanent injunction and
properties which were described in paragraphs 10 and 11 also
include the property of applicants though they are lawful
owners and occupiers and are in physical possession of the land
in question, as indicated above, and revenue entries are also
certified in their names. Said civil suit based upon some opinion
of the Chartered Accountant on the basis of which original
plaintiff is claiming to be the owner and said suit in a hot-
hurried manner came to be disposed of without joining the
present applicants though they are directly and substantially
affected with the outcome of said suit.
11. According to applicants, after framing of the issues within
a very short span, entire adjudication is concluded and
judgment and decree came to be passed on 31.3.2023 and suit
came to be allowed and it is declared that Board Resolutions as
passed in MoM dated 18.12.2009 by the Board of Directors
including defendant Nos.2 to 5 and subsequently executed the
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MoU on 19.12.2009 relating two projects/ land which are stated
in the memo of plaint, is declared to be illegal, non est and
thereby consequently directed the original defendant Nos.1 and
5 to handover possession of 'Greenwoods Farm Thol (Village-
Bhimasan, Taluka Kalol) and also lands of village Jaspur.
Resultantly, applicants though directly and substantially
interested and though are directly and prejudicially affected
with the outcome of the disposal of the civil suit and though
entries were reflecting their names, not being joined in the suit
proceedings and got decree against the legitimate interest of
applicants, by way of this application, applicants have sought
leave to prefer an appeal challenging the impugned judgment
and decree.
12. This application is also taken up conjointly with lead
application in which substantially, the submissions made by
learned advocate Mr. A.S. Vakil are reiterated, but additionally,
it has been contended by learned senior counsel Mr. Percy
Kavina that it is surprising to note that suit has been filed not on
the basis of any legitimate document in support of the plaintiff's
title but it is based upon a mere opinion of one private
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Chartered Accountant as named in the judgment and very
surprisingly, though there is no substantive piece of evidence in
favour of the original plaintiff, suit came to be allowed to the
detriment of interest of present applicant and as such, leave
deserves to be granted to challenge such unsustainable
judgment and decree.
13. Learned senior counsel Mr. Kavina has also drawn
attention of the Court to Section 135 of the Bombay Land
Revenue Code to contend that suit ought to have been with
support of such requirement but plaint as a whole if to be
looked into, such support is not available to the plaintiff nor
reflecting in the pleadings and as such also, decree itself is not
sustainable and since it is directly affecting the legitimate right
of ownership of present applicants, application deserves to be
allowed.
14. Learned senior counsel Mr. Kavina has submitted that
there are lot of issues touching to the merit but since present
application is merely for the purpose of seeking leave to prefer
an appeal, said issues are not being submitted at length but it
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has been submitted emphatically that in the suit, issues have
been framed in the month of February 2023, whereas judgment
and decree has been passed immediately in March 2023. Speed
in which adjudication is concluded, according to Mr. Kavina,
speaks volume about it. However, be that as it may, reserving
liberty to comment upon the merit of judgment in a substantive
First Appeal, Mr. Kavina has submitted that this is a fit case in
which leave deserves to be granted. Mr. Kavina is also relying
upon the decision delivered by Division Bench of this Court
which has been cited by learned advocate Mr. A.S. Vakil for the
applicant and has contended that parameters which are
prescribed in broad for the purpose of granting leave, present
set of application is perfectly fit in such proposition whereby
leave deserves to be granted, hence requested to allow the
application.
15. As against this, learned senior advocate Mr. Saurabh
Soparkar appearing on behalf of the contesting opponent, i.e.
original plaintiff, has submitted that applicant is neither affected
nor prejudiced by judgment and decree and what has been
granted by the Court below is the decree against the original
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defendants and no relief is asked against the applicants nor any
direction is given which may affect the applicants. Hence, that
be so, no leave deserves to be granted.
16. It has been further submitted by learned senior counsel
Mr. Soparkar that for the moment, question before the Court is
relating to an issue as to whether leave deserves to be granted
or not and as such Mr. Soparkar desists himself from expressing
anything on merit of the main judgment and decree which is
sought to be challenged, but has emphatically tried to make out
a case that no leave be granted. Simply because revenue entries
have been effected pursuant to judgment and decree, that would
not give any leverage to the applicants to straightway challenge
the judgment and decree which is otherwise not touching to the
rights of the applicants. For substantiating his submission, Mr.
Soparkar has drawn attention to some of the averments and the
prayer clause made in the applications and later on by drawing
attention to operative part of the judgment and decree has
submitted that what has been directed is upon original
defendant Nos.1 and 5. So, when judgment and decree does not
relate to the rights of the applicants and the suit is not filed for
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seeking any declaration against the present applicants, it is not
understandable as to how the applicants are affected by the
outcome of the case. It is a settled proposition of law that entry
made in the revenue record is merely for fiscal purpose and
would not confer any right, title or interest and has submitted
that if ultimately, applicants are finding that there is likelihood
to have any prejudice or effect, then to establish their rights
over the suit lands in question, independent proceedings can be
initiated and not to file application for seeking leave to appeal to
challenge the judgment and decree for which they were not
party.
17. Learned senior counsel Mr. Soparkar for the purpose of
strengthening his submission has made a reference to the
decision delivered by the Hon'ble Apex Court in the case of V.N.
Krishna Murthy and Another v. Ravikumar and others reported
in (2020) 9 SCC 501, and has submitted that almost in a similar
situation, the Hon'ble Apex Court has also not granted leave to
prefer an appeal in that peculiar background which background
is almost similar and has submitted that at the best, applicants
can initiate independent proceedings and cannot challenge the
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judgment and decree for which they are not affected.
18. In rejoinder to this submission of Mr. Saurabh Soparkar,
learned advocate Mr. A.S. Vakil has submitted that it is ill-
founded to contend that applicant is not in any way affected or
any prejudice is caused. In fact, operative part of the decree is
clearly indicating that rights of the applicant are being
prejudicially affected and has seriously pointed out that manner
in which at the instance of original plaintiff, revenue entries
have been made and certified in the same manner, they would
like to usurp the possession from applicant and that itself is a
serious prejudice and direct effect on the legitimate right of the
applicant. Mr. Vakil has submitted that if learned senior counsel
Mr. Soparkar on instruction indicates that this portion of land
which the applicant is holding is not likely to be affected nor any
action to be precipitated, then he may be justified, but there is
no such gesture being shown and as such applicant may not be
allowed to be adversely affected by the manner in which
judgment and decree is passed. According to Mr. Vakil, revenue
entries have been effected based upon impugned judgment and
decree and though there were specific objections before the
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revenue authority, such objections have not been dealt with and
entries have been certified. So, there are all chances that
legitimate rights of the applicant may be jeopardized and this is
a fit case in which leave deserves to be granted.
19. It is also surprising, according to learned advocate Mr.
Vakil, that how without any title of the property, title can be
inferred or assumed by learned Court below on the basis of
report of some private Chartered Accountant. These are the
circumstances which indicate that apprehension voiced out by
the applicant is genuine and impugned judgment and decree
may be allowed to be challenged.
20. Simultaneously, learned advocate Mr. Vakil has further
submitted that substantive First Appeal is also to be dealt with
by the Court at the instance of other defendants in which
notices have also been given and as such there is no prejudice
to the opponent in any manner if leave is granted to the
applicant. Further, by reiterating the observations contained in
the decision of Division Bench of this Court, as indicated above,
learned advocate Mr. Vakil has submitted that application
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deserves to be allowed.
21. Having heard learned advocates appearing for the parties
and having gone through the material on record, before dealing
with the submissions, few circumstances deserve to be
considered.
22. A perusal of the plaint would substantially indicate what is
the base of the plaint put forth by the original plaintiff in the
suit. So, along with other averments contained in paragraphs 5,
7, 8, 9, paragraph 10 appears to be relevant and as such some
of the gist of paragraphs 9 and 10 deserves to be quoted
hereunder:-
"9. The Plaintiff thereafter once again wrote to the then directors of
the Plaintiff including the Defendant Nos. 3, 4 and 5 as also to
the Defendant No. 5. The Plaintiff however did not receive any
reply / satisfactory reply from them. Accordingly, the Plaintiff
appointed Mr. Dilip P Shah, Chartered Accountant and
proprietor of M/s D. Shah & Associates, as the independent
Professional) to provide his report on the following questions:
1. Whether the properties referred in the letters of
anonymous sender belonged to the Plaintiff?
2. Whether the transactions as alleged by the anonymous
sender of the letter had taken place?
3. If the reply to the above reference at Sr. 2 s in affirmative,
whether carrying out such transactions were in compliance
with the provisions of the then applicable Companies Act,
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1956 and the Rules made under SEBI Act and the Stock
Exchange requirements under listing Agreement and
related enactments or attract breach of the provisions of
applicable enactments?
10. Mr. Dilip P shah, thereafter submitted his report dated October
31, 2018. In the said report, he concluded that the properties
which were subject matter of the anonymous letter were in fact
of the Plaintiff and that the transactions alleged in the said letter
were actually took place between the Plaintiff and the Defendant
No. 1. In the said report, Mr. Shah also concluded that there
were violation of the provisions of the Companies Act, 1956 and
disclosure obligations under the listing agreement. In the report,
it was also noted that the Defendant No. 1 not only got the said
lands but also failed to pay an amount of Rs. 296.04 lacs to the
Plaintiff. The List of lands/ projects that were transferred to the
Defendant No. 1 and are within the jurisdiction of this Hon'ble
Court are as below....."
23. The lands which are mentioned in the chart contained in
paragraph 10 indicates that applicant is holder of the lands of
Jaspur of Block / Survey numbers, except two survey numbers,
as indicated Mr. Vakil and said lands are held by applicant
through registered sale transactions which took place after
proper formality and is in physical possession right now.
24. Further, a perusal of the operative part of the judgment
and decree indicates that in paragraph-3, a direction in specific
form is given to defendant Nos.1 to 5 to handover possession of
scheduled lands which are mentioned in the said paragraph,
which some of portion is belonging to the applicant as lawful
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owner and simultaneously in paragraph-4, a permanent
injunction is also granted.
25. In addition to it, based upon report of Chartered
Accountant Mr. Dilip P. Shah dated 31.10.2018, it has been
concluded that lands in question were in fact of plaintiff
company and defendant of that suit has not challenged the
report of said Chartered Accountant. So, in substance, the
conclusion which has been arrived at that land is of the plaintiff
is centering around the report of the Chartered Accountant and
there appears to be no other cogent material. However, be that
as it may, said issue is the subject matter of main First Appeal,
but facts reveal that lands in question, some of which are
belonging to the applicants and applicants have purchased the
same through registered sale transactions after following
proper procedure and same were given effect in the revenue
record and in addition thereto, applicants are in physical
possession of the lands at present also and as such, in sum and
substance, applicants are directly being affected and are
prejudicially affected if decree is allowed to be implemented.
Hence, a case is made out by the applicants about prejudice
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which is likely to be caused to them by virtue of the impugned
judgment and order.
26. At this stage, learned advocates appearing for the
applicants have relied upon the decision delivered by
Coordinate Bench of this Court dated 5.10.2021, reflecting on
page 441 of Civil Application No.610 of 2023 and the Division
Bench based upon series of decisions delivered by Hon'ble the
Apex Court has laid down a broad proposition which we deem it
proper to quote hereunder:-
16. The principles governing grant of leave to appeal may be
summarised as under :
(i) Sections 96 and 100 of the CPC provide for preferring an
appeal from an original decree or decree in appeal
respectively;
(ii) the said provisions do not enumerate the categories of
persons who can file an appeal;
(iii) however it a settled legal proposition that a stranger
cannot be permitted to file an appeal in any proceedings
unless he satisfies the Court that he falls within the
category of aggrieved person;
(iv) it is only where a judgment and decree prejudicially affects
a person who is not a party to the proceedings, he can
prefer an appeal with the leave of the Court;
(v) a person aggrieved, to file an appeal, must be one whose
right is affected by reason of the judgment and decree
sought to be impugned;
(vi) the expression person aggrieved does not include a person
who suffers from a psychological or an imaginary injury;
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(vii) it would be improper to grant leave to appeal to every
person who may in some remote or indirect way be
prejudicially affected by a decree or judgment; and
(viii) ordinarily leave to appeal should be granted to persons
who, though not parties to the proceedings, would be
bound by the decree or judgment in that proceeding and
who would be precluded from attacking its correctness in
other proceedings.
87. Having regard to the materials on record, we are of the view that
the applicants have been able to make out more than a prima
facie case for grant of leave to appeal. The applicants could be
said to be prima facie prejudicially affected by the consent
decrees. Prima facie, the applicants have been able to
demonstrate that the consent decrees affect their legal rights
and would have adverse effect when carried out. The applicants
could be said to be falling within the ambit of the expression
'person aggrieved' entitling them to maintain appeal against the
impugned consent decrees.
88. We would like to clarify that our findings are confined only to the
extent of grant of leave to appeal. The final rights of the parties
shall be determined upon the adjudication of the Appeals on
merits.
89. Having regard to the aforesaid, all the four Civil Applications
seeking Leave to Appeal succeed and are hereby allowed. Leave
as prayed for is granted in all the Civil Applications.
90. The Appeals are ordered to be admitted. The interim order
earlier granted to continue in all the four Appeals till the final
disposal of the Appeals.
27. In view of the aforesaid observations which are made by
the Division Bench of this Court, if we peruse the facts on hand,
we are of the opinion that a case is made out by applicants to
seek leave to prefer appeal against judgment and order. Clause
Nos.(iii), (iv), (v) and (viii) of said paragraph 16 of the aforesaid
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decision are clinching the issue and as such, apprehension of
the applicants about being aggrieved is not based upon any
psychological or imaginary injury and as such we are of the
clear opinion that leave as prayed for deserves to be granted in
the interest of justice.
28. Further, we have also noticed in the present proceedings
that right from the day one, learned advocates for the applicants
were apprehending that despite pendency of these applications
and despite oral assurance given not to undertake any process,
at the plaintiff's instance, revenue entry was effected on the
basis of judgment and decree and despite objections raised by
present applicants not to certify the same, revenue authorities
have also certified the entry, which entire process according to
learned advocates for the applicants has been undertaken at the
instance of application of original plaintiff. Hence, we are of the
clearly opinion that possible injury is not imaginary nor
psychological. On the contrary, legitimate right of the
applicants being lawful owners and their possessory title would
be affected by virtue of impugned judgment and order. Hence,
on consideration of overall material on record, we are of the
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opinion that case is made out for granting present applications.
29. In the context of the aforesaid situation, judgment which
has been relied upon by learned senior counsel Mr. Saurabh
Soparkar reported in (2020) 9 SCC 501, if perusal of facts to be
taken note of, no-doubt, to some extent, factual scenario might
be looking similar but that was the case where person could not
demonstrate effect of decree upon his legal rights how and in
what manner adversely affected. However, in the instant case, it
has been clearly demonstrated before us that applicants are
likely to be affected by virtue of the directions contained in the
impugned judgment and order and in the manner in which
revenue proceedings are carried out. Hence, we are of the
opinion that in the facts of the present case on hand, the ratio
laid down and relied upon may not have any direct bearing to be
followed as a straitjacket formula. Facts mentioned in
paragraphs 21 and 22 are also indicative of the fact that
background of present facts on hand are distinct. Hence we are
of the opinion that said judgment is of no assistance to learned
senior counsel Mr. Soparkar representing the original plaintiff.
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30. At this stage, we may point out that law on the issue of
precedential value is quite clear and as held by the Hon'ble
Apex Court that if facts are different, one additional fact would
make a world of difference in applying the principle. Hence,
considering the said proposition also in mind, we are of clear
opinion that present applications deserve to be allowed.
31. We would make it clear that our findings of this decision
are confined only in respect of the issue related to grant of leave
to appeal and final rights of the parties shall be determined
upon adjudication of the appeals on merits. Accordingly,
applications for leave stand ALLOWED. Registry shall give
regular number to the main appeals.
Sd/-
(ASHUTOSH SHASTRI, J)
Sd/-
(DIVYESH A. JOSHI,J)
OMKAR
