Gujarat High Court
The State Of Gujarat vs Erachasha Hiramasji Jinwala, Died ... on 24 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1385 of 1989
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
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THE STATE OF GUJARAT
Versus
ERACHASHA HIRAMASJI JINWALA, DIED DURING THE PENDENCY OF
THE SUIT THROUGH HIS LEGAL HEIRS. & ORS.
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Appearance:
MS ROSHNI PATEL AGP for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Defendant(s) No.
13.1.1,13.1.2,13.1.3,13.1.4,13.1.5,13.1.6,13.1.7,41.2,41.3,41.4,44.1,44.2,44.3
,44.4
DELETED for the Defendant(s) No. 41.1
MR RUSHABH R SHAH(5314) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 24/06/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant - State of
Gujarat against the judgment and decree dated
28.04.1987 passed by Second Joint Civil Judge (S.D.)
Ahmedabad (Rural) (hereinafter referred to as "trial
Court") in Special Civil Suit No. 24 of 1970, whereby the
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trial Court has directed the defendants to jointly pay
Rs.9,39,292/- to the plaintiffs together with interest from
the date of the suit till realization.
2. The facts giving rise to present appeal are that the
respondent Nos. 2 to 75 are the shareholders of
Bhankoda estate which consist 12 villages. In 1925, as
per Section 27 of Talukedari Act, 1988, the Government
had given possession to Talukedar. At the relevant point
of time, due to huge debt of Talukedar, the Talukedar
decided to handover management to plaintiff. Therefore,
84% of shareholder executed ijarapatra for 15 years in
favour of plaintiff by way of 5 registered deed and
management and possession was handed over to the
plaintiff.
2.1 Thereafter, creditor who had given money to
Talukedar filed Civil Suit No.64 of 26 to recover the
money and Collector was appointed as receiver. The
Talukedar by executing mortgage deed with Maharani
borrowed Rs. 1,69,000 and the amount was paid to the
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creditors and in 1928 possession was handed over to the
plaintiff by the Collector.
2.2 Then, in 1934 Maharani filed Suit No.931 of 1934 to
recover the amount against plaintiff and Talukedar and
prayed to appoint receiver and during proceeding,
plaintiff No.1 was appointed as the receiver and he
tendered resignation which was accepted on 19.01.1950.
Subsequently, the management had been taken by the
Collector.
2.3 Thereafter, Mamlatdar of Viramgam was appointed as
an estate manager. The Mamlatdar had issued notice to
the Talukedar to submit their claims and objections and
after receiving all accounts from year 1925 to 1950 of
plaintiff, Mamlatdar directed Talukedars to submit their
objections and after verifying documents as well as oral
evidence produced by both the parties, Mamlatdar
suggested for scheme of settlement.
2.4 The scheme was forwarded to Collector for approval
however, Collector sent it to State Authority and
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authority has directed to verify again. Then, revision
application was filed and during pendency of the same by
notification dated 15.4.1958, Government declared that
management of estate Bhankoda put to an end as it was
managed under the provision of Bombay Tenancy Act and
possession was handed over to the estate holder.
2.5 Thereafter, since the request of the plaintiff was
rejected by the Collector, the plaintiff filed writ petition
before this Court. The same was decided and this Court
observed that possession was with Talukedar and
therefore, the Court cannot pass order of possession.
Thereafter, different suits were filed by the plaintiff to
restore the possession and recover the amount of
compensation wherein, the suit bearing Civil Suit No. 24
of 1970 was rejected on 26.12.1973 and the Court held
that the claim was time barred.
2.6 Being aggrieved and dissatisfied with order dated
26.12.1973, the plaintiff had preferred First Appeal No.
218 of 1974, whereby this Court, by an order dated
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9.10.1984 allowed the said Appeal and directed that the
preliminary decree be drawn to the effect that the
account shall be taken between the plaintiff and
defendant Nos. 2 to 75 and also directed that the amount
of compensation lying with the State shall not be parted.
Then as per order dated 9.10.1984 passed in First
Appeal, the Court Commissioner was appointed and Court
Commissioner had submitted report and the respondent
No. 1 i.e. State has deposited Rs.30,000/- towards
compensation.
2.7 After considering the report of Court Commissioner,
by an order dated 28.4.1987, the trial Court allowed the
suit partly and directed all the defendants to pay
Rs.9,39,292/-.
2.8 Being aggrieved and dissatisfied with the said
impugned order passed by the trial Court, the appellant
State of Gujarat has filed present appeal.
3. Heard Ms. Roshni Patel, learned AGP for the
appellant-State of Gujarat and Mr. Rushabh R. Shah,
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learned counsel for respondent No.1.
4. Ms. Patel, learned AGP for the appellant has
submitted that this is second round of litigation. She has
submitted that earlier the suit being Civil Suit No. 24 of
1970 was decided by the Court concerned on 26.12.1973.
She has submitted that being aggrieved and dissatisfied
wit the same, the plaintiff had preferred First Appeal No.
218 of 1974 before this Court which was decided vide
order dated 9.10.1984.
5. Ms. Patel, learned AGP for the appellant has
submitted that the trial Court ought to have considered
that transaction took place through ijarapatrak and
mortgage deed between plaintiff and respondent No.2 to
75. She has also submitted that the trial Court ought to
have considered that suit was filed in capacity of
partnership firm and said suit is barred by the provision
of Section 69(2) of Indian Partnership Act. She has
submitted that the claim of the plaintiffs is on the premise
of Kabulatnama between the plaintiff and private parties
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(defendant Nos. 2 to 75), in which the State Government
was never a party and in absence of any contractual
liability, the State Government cannot be compelled to
pay the dues of the private parties.
5.1 Ms. Patel, learned AGP for the appellant has
submitted that the impugned order of the trial Court is
silent on any reasoning as to why the State should bear
the financial burden of the debts owned by private
individuals or entities. She has submitted that the trial
Court has failed to provide any reason for saddling the
Government with such liability. She has submitted that
the State Government is not an insurer of private debts or
liabilities in cases where the private defendants are
unable to meet with their financial obligations, the
responsibility of the payment does not automatically
develop upon the State.
5.2 In view of the above submissions, Ms. Patel, learned
AGP for the appellant urges before the Court that present
appeal may be allowed and impugned judgment and
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decree passed by the trial Court may be quashed and set
aside.
6. As against that Mr. Shah, learned counsel appearing
on behalf of the original plaintiff i.e respondent No.1
herein has contended that the trial Court has rightly
passed the impugned judgment and decree and held
liable the State of Gujarat, as the Court had directed the
State to deposit Rs. 30,000/- and therefore, they are
jointly liable to pay the amount and therefore, present
Appeal deserves to be dismissed.
6.1 Mr. Shah, learned counsel for the respondent No.1
has submitted that the trial Court has rightly passed the
impugned judgment an decree and directed the
defendants to jointly pay the amount of Rs.9,39,292/- to
the plaintiff together with interest @ 4% p.a. from the
date of the suit till realization.
6.2 Mr. Shah, learned counsel for the respondent No.1
has submitted that none of the original defendants have
ever challenged the reports of Court commissioner dated
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3.4.1987 and that report has also attained finality and
based on the report of the Court Commissioner, an order
dated 28.4.1987 came to be passed by the trial Court.
6.3 Mr. Shah, learned counsel for the respondent No.1
has submitted that after evaluating the evidence on
record and after appreciating the material facts and after
hearing both the sides, the trial court has passed the
impugned judgment and decree, which does not call any
interference by this Court and the impugned judgment
and decree passed by the trial Court may be confirmed.
7. I have perused the material and documents available
on record as well the record and proceedings. I have also
gone through the impugned judgment and decree passed
by the trial court.
8. It appears from the record that the original decree
was passed by the trial Court, whereby the suit of the
original plaintiff came to be dismissed on 26.12.1973.
Being aggrieved and dissatisfied with the said order, the
original plaintiff had preferred the Appeal before this
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Court being First Appeal No.218 of 1974 which was
allowed vide judgment and order dated 9.10.1984. In the
first round of litigation, this Court has observed that
respondent No. 2 to 75 were liable to furnish the account
with regard to the due and payable amount, wherein the
Court has exonerated respondent No.1 State of Gujarat -
i.e. present appellant. Thereafter, the matter was
remitted for the purpose of furnishing the account to the
Commissioner appointed by the court. However, trial
Court has, without considering the observation made by
this Court in the earlier round of litigation, while passing
the impugned judgment and decree held that all the
respondents including the State of Gujarat are jointly
liable to pay the decreetal amount, which is absolutely
illegal, unjust and against the order passed by this Court,
based upon the evidence and therefore, the impugned
judgment and decree passed by the trial Court deserves
to be quashed and set aside.
9. It appears that while passing the impugned
judgment and decree, the trial Court has committed
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serious error of law and on facts both and come to the
conclusion that all the respondents including State of
Gujarat are liable to pay the amount.
10. In earlier round of litigation, in the First Appeal No.
218 of 1974, by an order dated 9.10.1984, the Court has
observed as below:-
"The result is that, we allow this appeal partly and direct
that a preliminary decree drawn to the effect that the
accounts shall be taken between the plaintiffs on one
hand and the defendant No. 2 to 75 on the other in
respect of two sets of transaction evidence by Exh___to
Exh.___ and Exh.163 to Exh.170. The trial Court, after
proceedings a remitted to it, on the preliminary decree
having been drawn, will appoint a Commissioner to take
the accounts and then the normal procedure will follow.
The Ld. Counsel Mr. Shelat states that in respect of the
claims and accounts, the plaintiffs had already produced
and proved various documents. If it is so, they will
naturally be taken into account by the Commissioner.
While taking the accounts, the Kabuliyat at Ex.161 and
162 which are also found proved by the Ld. Trial Judge
will be taken into account for the purpose of taking
accounts. It is directed that, till the question of the dues
of the plaintiffs, if any, is finally decided, the amount of
compensation lying with the defendant No.1, State of
Gujarat, shall not be parted with in favour of the
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defendants No.2 to 75.
The appeal, accordingly, stand allowed with no
order as to costs."
11. Having been remitted the suit to the trial Court, the
suit again relisted as Special Civil Suit No. 24 of 1970 and
the same came to be decided on 28.04.1987, whereby the
trial Court directed all the respondents to deposit the
decreetal amount i.e. Rs.9,39,292.11 paisa jointly
including State of Gujarat.
12. At this stage, Mr. Shah, learned counsel for the
respondent No.1 submits that since the Court is inclined
to grant present appeal and inclined to exonerate the
State of Gujarat from the liability, the respondent No1.
may be permitted to file execution application against
respondent Nos. 2 to 75.
13. In light of the impugned judgment and decree
passed by the trial Court and in the earlier round of
litigation the observation made by this Court in First
Appeal No. 218 of 1974, the submission made by learned
counsel for the respondent No.1 is required to be
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considered.
14. In view of the above, if the original plaintiff i.e.
respondent No.1 herein approaches the trial Court and
file an Execution Application against the original
respondent Nos 2 to 75, the same shall be considered by
the concerned trial Court in accordance with law. As the
interim relief was granted till date, the delay will not
come in the way of the original plaintiff - respondent No.1
in filing Execution Application before the concerned trial
Court against respondent Nos. 2 to 75.
15. Present appeal is hereby partly allowed qua liability
of the State Government. It is hereby observed that the
State of Gujarat-appellant herein is hereby exonerated
from its liability. The impugned judgment and decree
dated 28.04.1987 passed by trial Court in Special Civil
Suit No. 24 of 1970, is hereby modified to the extent that
the liability is of the original respondent Nos. 2 to 75 and
not of the State of Gujarat.
16. At this stage, Ms. Patel, learned AGP has submitted
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that in view of the earlier order passed by this Court, the
appellant-State of Gujarat has deposited the amount of
compensation before the trial Court and therefore, the
same may be refunded to the appellant.
17. For that, Mr. Rushabh R. Shah, learned counsel for
the respondent No.1 has no objection.
18. In view of the above and considering the earlier
decision of this Court dated 19.2.1983 passed in First
Appeal No. 218 of 1974, if the appellant - State of Gujarat
has deposited the decreetal amount before the trial court,
the same shall be refunded to the appellant, after due
verification and after deducting the amount of
compensation
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
