Mukhtar Ahmed Gehlot, S/O - Shri ... vs Bhanwarlal S/O Sh. Shrinarayan
2023 Latest Caselaw 184 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

         S.B. Review Petition (Writ) No.217/2022

                                      In

            S.B. Civil Writ Petition No.9086/2019

1.     Mukhtar Ahmed Gehlot, S/o - Shri Shokat Ali, Aged About
       46 Years, R/o - Mohalla Guwar, Makrana, District Nagaur
       (Rajasthan.)-341505
2.     Mohammed Siddique S/o Shri Gulam Shekh Farid, Aged
       About 53 Years, R/o Ward No.38, Guljarpura, Makrana,
       District Nagaur (Rajasthan.)-341505
                                                        ----Review Petitioners
                                  Versus


1.     Bhanwarlal S/o Sh. Shrinarayan, R/o Village Mahapura,
       Tehsilsanganer, Distt. Jaipur.
                               ----Review Respondent/Writ Petitioner

2. M/s. Land Mark Executive Pvt. Ltd., Registered Office 3, Munirika Marg, New Delhi Through Authorized Agent Pradeep Sharma S/o Naresh Chand Sharma, R/o F-1, Vijay Path, Banipark, Jaipur.

3. Gopal S/o Laduram, R/o Village Mahapura, Tehsilsanganer, Distt. Jaipur.

4. Smt. Krishna Devi D/o Shrinarayan Sharma, R/o Village Mahapura, Tehsil Sanganer, Distt. Jaipur. Presently R/o A- 48, Shivaji Marg, Nehru Nagar, Panipech, Jaipur. (Since Deceased) 4/1. Jitendra S/o Sh. Narain Sahai, R/o A-48, Shivaji Marg, Nehru Nagar, Panipech, Jaipur.

4/2. Chandra Mohan S/o Sh. Narain Sahai, R/o A-48, Shivaji Marg, Nehru Nagar, Panipech, Jaipur.

4/3. Shekhar S/o Sh. Narain Sahai, R/o A-48, Shivaji Marg, Nehru Nagar, Panipech, Jaipur.

4/4. Rama Devi D/o Narain Sahai W/o Amit Sharma, Path-7, Bandhu Nagar, Murlipura, Jaipur.

4/5. Shyama Devi D/o Narain Sahai W/o Nikhil Sharma, R/o Village Jhanyi, Post Bar Ke Balaji, Jaipur.

                                                               ----Respondents



                                                  (2 of 8)             [WRW-217/2022]


5.      Rajasthan       Government            Through        Tehsildar,   Sanganer,
        District Jaipur.
6.      Board    Of      Revenue,         Rajasthan,         Ajmer   Through    Its
        Registrar.
7.      Revenue Appellate Authority, Jaipur.

8. Assistant Collector Cum Executive Magistrate, Jaipur City

- I , Jaipur.

9. Smt. Laxmi Devi Wife Of Late Shrinarayan Sharma.

(Deleted Respondent).

                                                      ----Proforma Respondents


For Petitioner(s)             :    Mr.Javed Khan, Adv.



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                        Order

06/01/2023

This review petition has been filed by the two review

petitioners for seeking review of the order and judgment passed

by this Court on 06.07.2022 in S.B. Civil Writ Petition

No.9086/2019 (Bhanwarlal Vs. Ms. Land Mark Executive

Pvt. Ltd. and Ors.).

Learned counsel for the review petitioners submitted that

S.B.Civil Writ Petition No.9086/2019 was filed by the original

petitioner-Bhanwar Lal challenging the order dated 09.04.2019,

passed by the Board of Revenue, order dated 01.02.2016 passed

by the Revenue Appellate Authority, the Judgment and decree

dated 12.06.2015, passed by the Assistant Collector and Executive

Magistrate, Jaipur City - I & judgment and the preliminary decree

dated 02.06.2015, passed by the Assistant Collector and Executive

Magistrate, Jaipur City - I, Jaipur.

(3 of 8) [WRW-217/2022]

Learned counsel for the review petitioners submitted that

this Court while deciding the writ petition has set aside the decree

dated 12.06.2015, the order passed by the Board of Revenue

dated 09.04.2019 and the order dated 01.02.2016, passed by the

Revenue Appellate Authority, has also been set aside.

Learned counsel for the review petitioners submitted that

though this Court has upheld the preliminary judgment and decree

dated 02.06.2015, however, liberty has also been given to the

Court below to proceed further in pursuance of the preliminary

judgment and decree.

Learned counsel for the review petitioners submitted that the

present dispute before this Court, was also raised before different

adjudicating Authorities, wherein interest of the review petitioners

have not been looked into, in spite of the review petitioners being

bona-fide purchaser of the property in question.

Learned counsel for the review petitioners submitted that the

fact relating to transfer of land by the original plaintiff M/s.Land

Mark Executive Pvt. Ltd. in favour of Manglam Build Developers

Limited was highlighted before this Court in the reply filed by the

respondents in the present writ petition i.e. M/s.Land Mark

Executive Pvt. Ltd.

Learned counsel for the review petitioners submitted that

none of the parties in the writ petition brought certain important

facts in knowledge of this Court with respect to the present status

of the property in question.

Learned counsel submitted that not only the land was

transferred in favour of the JDA Authorities but also regularization

camps were held and lease deed/patta were issued and as such,

learned counsel for the review petitioners submitted that in such a

(4 of 8) [WRW-217/2022]

situation, it was incumbent on all the parties, who brought their

matter before this Court to reveal complete facts of the said

property in question for arriving at a proper conclusion.

Learned counsel for the review petitioners has made

following submissions for recalling the order passed by this

Court:-

1. There is an apparent error/mistake in the order dated

06.07.2022 passed by this Court, as pleadings before this Court

have not been taken into consideration while passing the said

order and in spite of the fact that transfer of land being brought

into notice by way of filing reply by the original respondent in the

writ petition, this Court did not give its own finding and as such

"error apparent on the face of the record", needs to be corrected

by this Court.

2. The writ petition filed by the petitioner as well as the facts

pleaded before this Court in the reply filed by the respondents did

not narrate the correct facts before this Court and subsequent

developments which had taken place during the litigation, ought to

have been brought into notice of this Court and if certain

important facts are not brought into notice of this Court, such

omission becomes a cause for calling the order to be re-examined,

by considering all the relevant and subsequent facts.

3. The consequence of the order passed by this Court would be

like unsettling the settled things after a long period of time and

since the review petitioners are in a rightful possession of the

property in dispute and in absence of such an important necessary

party, the final order should not have been passed by this Court.

(5 of 8) [WRW-217/2022]

4. Learned counsel for the review petitioners submitted that

even if writ petition has been filed under Article 227 of the

Constitution of India, conduct of the parties is a most important

factor for the purpose of granting equitable relief and in

clandestine manner, and the facts projected before this Court

affect rights of the persons, who have stakes in the property, such

conduct itself dis-entitled the original writ petitioners to get relief

from this Court.

5. Leaned counsel for the review petitioners submitted that

though an appeal is said to have been filed against the order

passed by this Court before the Division Bench, however, the right

of review for recalling the order passed by this Court is available

and as such this Court may not restrain itself from recalling the

order only on account of pendency of the appeal before the

Division Bench.

6. Learned counsel for the review petitioners further submitted

that the Apex Court in the case of Crystal Developers Vs. Asha

Lata Ghosh (Dead) through LRs & Ors. reported in 2005 (9)

SCC 375, has considered the issue of subsequent developments,

which had taken place and if certain rights were settled in respect

of property in question, the order of the Court should not result

into unsettling or depriving the persons from their valuable right

of the property.

I have heard learned counsel for the review petitioners and

perused the available on record.

This Court finds that in the present review petition, the

review petitioners have claimed that they had purchased the

property from one M/s.Manglam Build Developers Limited.

(6 of 8) [WRW-217/2022]

This Court finds that Misc. Application No.1/2022 was filed by

the applicant - M/s.Manglam Build Developers Limited under

Order 1 Rule 10 CPC for impleadment as a party respondent in the

writ petition and this Court vide order dated 02.03.2022, after

considering the submissions of learned counsel for both the

parties, found that Manglam Build Developers Limited was neither

necessary nor proper party, however, considering the controversy

involved in the writ petition, the Manglam Build Developers

Limited was allowed to intervene in the matter as intervener.

This Court finds that counsel who was representing Manglam

Build Developers Limited was given opportunity of hearing and

after considering the submissions raised by counsel for the

intervenor as well as counsel appearing for the original writ

petitioner and the respondents, this Court decided the writ petition

finally on 06.07.2022.

This Court finds that if review petitioners are seeking their

rights from Manglam Build Developers Limited or they have

stepped into their shoes, the right of Manglam Build Developers

Limited has already been considered by this Court while

adjudicating the writ petition.

This Court finds that before deciding the writ petition finally,

the order dated 02.03.2022 passed by this Court on impleadment

application was not challenged before any Higher Court and as

such, this Court decided the writ petition finally.

The submission of counsel for the review petitioners that due

to subsequent developments, which had taken place and did not

form as a part of pleadings, as such, this Court has not looked into

important aspect relating to third party rights, as such there is an

apparent error in the order passed by this Court, suffice it to say

(7 of 8) [WRW-217/2022]

by this Court that the review petitioners were neither party in the

first instance, where suit was filed nor in the appeal filed before

the Revenue Appellate Authority. The review petitioners or any

such other persons, who are claiming their right now, never

applied for impleadment as a necessary party in the first instance.

This Court finds that the matter traveled upto the Board of

Revenue and even at that stage, no such person came forward for

impleadment on the basis of some right being created in their

favour by virtue of subsequent developments.

This Court finds that in the writ petition filed by the original

writ petitioner, various orders passed by the Adjudicating

Authorities, were under challenge and all those persons, who were

parties in the litigation, were before this Court and they were

accordingly heard.

This Court also finds that the writ petition filed by the

original writ petitioner was challenging the orders passed by the

different Review Authorities including the Board of Revenue and

since the writ petition was filed primarily under Article 227 of the

Constitution of India, all those parties, who were there before the

Adjudicating Authorities, were only necessary parties and

accordingly, such parties were heard.

This Court further finds that the impleadment application

which was filed, at one point of time, was considered in the

interest of justice and even hearing was afforded to such applicant

for making legal and other factual submissions.

The submission of learned counsel for the review petitioners

that the subsequent developments had resulted in creating rights

in favour of the review petitioners and now by virtue of order

passed by this Court, the settled things have become unsettled,

(8 of 8) [WRW-217/2022]

this Court finds that the order of Board of Revenue as well as the

Appellate Authority have not been found to be legally sustainable

and accordingly, those orders have been set aside by this Court.

The submission of learned counsel for the review petitioners

that this Court may not restrain itself from entertaining the

present review petition only on account of pendency of appeal

being filed against final order passed by this Court, however, this

Court is not dismissing the present review petition on the said

ground.

This Court is considering all the submissions, which have

been made by the counsel for the review petitioners for

entertaining the review petition.

The submission of learned counsel for the review petitioners

that the Apex Court in the case of Crystal Developers (supra)

has laid down the law that the settled things should not be

unsettled and if any right is created in favour of parties, the same

needs to be protected. This Court, has gone through the judgment

relied upon by counsel for the review petitioners and finds that the

Apex Court was dealing with the issue of revocation of grant of

probate and whether the same was to operate prospectively or the

same could be revoked on the ground of fraud. The said judgment

is of little assistance to counsel for the review petitioners.

This Court finds that the present review petition cannot be

entertained by this Court and accordingly, the same is dismissed.

(ASHOK KUMAR GAUR),J

Monika/30

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