SCA/9843/2006 1/67 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9843 of 2006 With SPECIAL CIVIL APPLICATION No. 13040 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= CHAMPALAL GOPIRAM AGRAWAL & 5 - Petitioner(s) Versus JAYANTIJI KHODAJI THAKORE & 10 - Respondent(s) ================================================= Appearance : Special Civil Application No. 9843 of 2006: Mr. AJ Patel for Mr. Shital Patel, for the petitioners. Mr. Dipak R. Dave, advocate for respondent Nos.1 to 10. Mr. Bharat J. Shelat with Mr. Deepak Joshi, for respondent No.11. Special Civil Application No. 13040 of 2006: Mr. Bharat J. Shelat with Mr. Deepak Joshi, for the petitioner. Mr. AJ Patel for Mr. Shital Patel, for respondent Nos.1 to 6. Mr. Dipak R. Dave, for respondent Nos.7 to 16. SCA/9843/2006 2/67 JUDGMENT CORAM: HONOURABLE MR JUSTICE A.M. KAPADIA Date: 18.07.2006 COMMON ORAL JUDGMENT 1. Rule. (i) Mr. Dipak R. Dave, learned advocate appears and waives service of notice of rule on behalf of respondent Nos.1 to 10 whereas Mr. Deepak Joshi, learned advocate appears and waives service of notice of rule on behalf of respondent No.11 in Special Civil Application No. 9843 of 2006. (ii) Mr. Shital Patel, learned advocate appears and waives service of notice of rule on behalf of respondent Nos.1 to 6 whereas Mr. Dipak R. Dave, learned advocate appears and waives service of notice of rule on behalf of respondent Nos.7 to 16 in Special Civil Application No. 13040 of 2006. 2. What is challenged in these two petitions filed under Articles 226 and 227 of the Constitution of India is the order dated SCA/9843/2006 3/67 JUDGMENT 23.2.2006 recorded below application Ex.85 in Regular Civil Suit No.432 of 1995 by the learned Civil Judge (SD), Ahmedabad Rural at Navrangpura, by which the application Ex.85 filed by respondent No.11, Ganesh Sagar Infrastructure Private Limited, a company registered under the provisions of the Companies Act, seeking to add proposed 20 issues mentioned in the application came to be partly allowed and thereby proposed issue Nos.2, 3 and 10 mentioned in the said application have been ordered to be added as issue Nos. 6-A, 6-B and 6-C in the issues framed earlier vide Ex.50. 3. Since both these petitions arise out of one and common order with regard to the same subject matter – property i.e., land bearing Survey Nos.103/1, 103/2, 103/3, 103/4, 103/5, 103/6, 104/1, 104/2 and 104/3 of village Thaltej ('suit land' for short) and also the controversy involved in these two petitions runs in a narrow compass with regard to framing of additional issues, with the consent of the learned advocates SCA/9843/2006 4/67 JUDGMENT appearing for the parties, both these petitions are taken up for final hearing today, heard together and decided by this common judgment. 4. The petitioners of Special Civil Application No. 9843 of 2006 are the plaintiffs in Regular Civil Suit No.432 of 1995 whereas petitioner of Special Civil Application No.13040 of 2006 is defendant No.16 in the said suit. Therefore, for the sake of brevity and convenience, the parties are hereinafter referred to as the “plaintiffs” and “defendant No.16”. 5. In order to appreciate the controversy raised in these two petitions in a better perspective, it would be advantageous and convenient to refer to the facts stated in Special Civil Application No. 9843 of 2006, which is arising out of the order passed below application Ex.85 in Regular Civil Suit No.432 of 1995. 6. Since the main controversy involved in these SCA/9843/2006 5/67 JUDGMENT two petitions centres around the framing of three additional issues proposed by defendant No.16 with regard to the genuineness of the will executed by deceased Jyotiben in favour of the plaintiffs in respect of agricultural land bearing Survey No. 966/1 of Ognaj village and on the basis of the said will acquisition of status of 'agriculturists' by the plaintiffs and the said issue has direct bearing on the question of ownership right on the basis of the sale deed conveyed to the plaintiffs as well as defendant No.16 by the erstwhile owners, it is necessary to advert to the factual background of the case in detail. (i) The erstwhile owners entered into an agreement to sale of the suit land on 12.11.1981 with the plaintiffs and as per the terms and conditions of the agreement to sale, possession of the suit land was also handed over to the plaintiffs. (ii)Before entering into the agreement to sale, SCA/9843/2006 6/67 JUDGMENT the plaintiffs were holding two parcels of agricultural land - (a) S.No.1526/65 of Ognaj village purchased on 17.10.1979. Mutation Entry No.1933 was entered on 18.10.1979 in their name. The said entry has reached finality in view of the order dated 19.9.2003 passed in Special Civil Application No.12055 of 2003 by this Court; (b) Survey No.966/1 of Ognaj village, pursuant to the will dated 17.2.1975, of deceased Jyotiben, widow of Chaturbhai Hirabhai, in favour of the plaintiffs. Mutation Entry No.2526 dated 27.4.1984 was certified on 2.6.1984. Therefore, the plaintiffs have acquired the status of 'agriculturists' prior to the year 1986. (iii) Thereafter in respect of the suit land, a registered sale deed was executed in the year 1986 on payment of the entire sale consideration by the plaintiffs to the erstwhile owners. (iv)After execution of the sale deed in favour of the plaintiffs by the erstwhile owners, one of SCA/9843/2006 7/67 JUDGMENT the erstwhile owners, made an application to the Mamlatdar and ALT by instituting Case No.106 of 1991 which was registered under Section 84C of the Bombay Tenancy & Agricultural Lands Act, 1948 ('the Act' for short) on the ground that the plaintiffs were not agriculturists at the time of entering into the transaction for purchase of the suit land in the year 1986 and, therefore, the sale deed was in breach of Section 63 of the Act. (v) Having heard the parties, the Mamlatdar & ALT dropped the proceedings initiated under Section 84C of the Act against the plaintiffs vide order dated 26.12.1991. (vi)The order dated 26.12.1991 passed by the Mamlatdar & ALT was taken in suo motu revision under Section 76A of the Act by the Deputy Collector in Tenancy Revision Case No.991 of 1992. After hearing the parties, the Deputy Collector upheld the order passed by the Mamlatdar & ALT. SCA/9843/2006 8/67 JUDGMENT (vii) In the meanwhile, mutation entry Nos.7201 to 7205 were entered in village Form No.6 in respect of the registered sale deed executed in favour of the plaintiffs in the year 1986 by the erstwhile owners of the suit land. However, in respect of the said entries of sale, defendant No.16, through its Chairman, filed objections before the Mamlatdar & ALT asking him not to certify the aforesaid entries of sale deed of the plaintiffs on the premises that the original owners have sold the suit land to it in the year 1992. Since there was also a conveyance deed in favour of defendant No.16 by the erstwhile owners, mutation entry Nos.7006 to 7010 were entered in village Form No.6. (viii) Against the mutation entries made in favour of defendant No.16, a dispute was raised by the plaintiffs. However, the Mamlatdar & ALT certified the entries in favour of defendant No.16 and mutation entry Nos.7201 to 7205 were transferred to disputed register and instituted Disputed Case Nos.7/94 to 11/94 and passed order SCA/9843/2006 9/67 JUDGMENT dated 20.3.1995 against the plaintiffs. (ix)Against the order dated 20.3.1995, the plaintiffs filed RTS Appeal No.82/94-95 and 44/95-96 to 48/95-96 and the said appeals were allowed by the Deputy Collector, Viramgam Prant vide order dated 3.1.1996 and entry Nos.7006 to 7010 made in favour of defendant No.16 were set aside and mutation entry Nos.7201 to 7205 were approved and the order of Mamlatdar dated 20.3.1995 was set aside. (x) Against the order dated 3.1.1996 passed by the Deputy Collector, Viramgam Prant, defendant No.16 filed Revision Application No.130 of 1996 before the Collector, Ahmedabad and the Collector, Ahmedabad rejected the said revision application. (xi)The order of the Collector, Ahmedabad was carried further before the Special Secretary, Revenue Department, in Revision Application No.12 of 1996 by defendant No.16 and the Revision SCA/9843/2006 10/67 JUDGMENT Application No.12 of 1996 was also rejected vide order dated 28.11.2003. (xii) Aggrieved by the order dated 28.11.2003 passed by the Special Secretary, Revenue Department, defendant No.16 filed a review petition against the said order which was also rejected vide order dated 16.2.2005. (xiii) In the meanwhile, proceedings under Section 84C of the Act were initiated in respect of the sale deed entries made in favour of the plaintiffs. However, the Deputy Collector, by order dated 27.1.1993, rejected the revision application and confirmed dropping of 84C proceedings by the Mamlatdar & ALT. (xiv) Against the order dated 27.1.1993 passed in Revision Application No.391 of 1992, two sets of revision application were filed i.e., Revision Application No.TEN-BA 342 was filed by defendant No.16 and Revision Application No. TEN-BA 742 of 1993 was filed by original owners, later on SCA/9843/2006 11/67 JUDGMENT before the Gujarat Revenue Tribunal. Both these revision applications were opposed by the plaintiffs. The Tribunal by a common order dated 25.4.2000, held that the plaintiffs have duly purchased the suit land from the original owners in 1981 and 1986 respectively and also held that subsequent purchaser, i.e., defendant No.16 has no locus standi and the case of defendant No.16 is not tenable at all. The Tribunal has also held that the plaintiffs are agriculturists and were agriculturists while purchasing the suit land in the year 1986 and accordingly rejected both the revision applications. (xv) Against the order dated 25.4.2000 passed by the Gujarat Revenue Tribunal in both the revision applications, two review applications, i.e., TENCA No.19 of 2000 and TENCA No.21 of 2000 were filed by defendant No.16 and the original owners of the suit land, respectively. Both the review applications were rejected by the Gujarat Revenue Tribunal by a reasoned order. In the said order also it has been clearly held that the SCA/9843/2006 12/67 JUDGMENT sale in question in favour of the plaintiffs is prior in point of time and, therefore, the second sale in favour of defendant No.16 is absolutely invalid and ineffective. (xvi) Against the said order passed by the Gujarat Revenue Tribunal, defendant No.16 filed Special Civil Application No.3212 of 2001 before this Court. This Court vide order dated 4.5.2001 disposed of the petition as it was unconditionally withdrawn. (xvii) According to the plaintiffs, erstwhile owners made an attempt to interfere with the possession of the suit land, therefore, the plaintiffs apprehending that the erstwhile owners will take law in their hands, filed four suits being Regular Civil Suit Nos. 429 of 1995 to 432 of 1995 in the Court of learned Civil Judge (SD), Ahmedabad Rural, seeking a perpetual injunction and praying for various reliefs. Along with the said suits, the plaintiffs also filed application Ex.5 seeking ad-interim relief during the SCA/9843/2006 13/67 JUDGMENT pendency of the suits and also for preparing panchnama. Pursuant to the said application, a Court Commissioner was appointed, who made a report on 29.5.1995 to the effect that the plaintiffs are in actual and physical possession of the suit land. (xviii) After hearing the learned advocates appearing for the parties and on the basis of the report dated 29.5.1995 submitted by the Court Commissioner, the learned trial Judge allowed the application Ex.5 seeking ad-interim relief during the pendency of the suits, in favour of the plaintiffs. (xix) Aggrieved thereby, the erstwhile owners preferred Civil Misc. Appeal No.210 of 1997 in the District Court, Ahmedabad Rural, and the learned District Judge, who heard the appeal, dismissed it vide order dated 19.4.1999. (xx)It is pertinent to note at this stage that the question whether the plaintiffs were SCA/9843/2006 14/67 JUDGMENT agriculturists at the time of purchase of the suit land or not was raised at the interim stage and the appellate court held that the appropriate authority has already held that the plaintiffs were agriculturists and also found that the plaintiffs were in possession of the suit land by virtue of supplementary agreement dated 12.11.1981. (xxi) Against the order dated 19.4.1999 passed in Civil Misc. Appeal No.210 of 1997 by the District Court, Ahmedabad Rural, Civil Revision Application Nos.1206 of 1999 to 1208 of 1999 were filed before this Court and the said revision applications were permitted to be withdrawn vide order dated 7.12.2005. (xxii) It is pertinent to note that simultaneously defendant No.16 had also filed Regular Civil Suit No.458 of 1995 against the plaintiffs. Along with the suit, defendant No.16 also filed application seeking ex-parte ad- interim injunction against the plaintiffs with SCA/9843/2006 15/67 JUDGMENT regard to the suit land. The learned trial Judge granted the application seeking ad-interim injunction in favour of defendant No.16. (xxiii) Against the said order, the plaintiffs filed Civil Misc. Appeal No.77 of 1995 in the District Court, Ahmedabad Rural. Along with the appeal, application Ex.5 was also filed and on the said application, the District Court passed an order staying the order of the trial court and also directing to draw another panchnama and in that proceeding also a Court Commissioner was appointed who found that the plaintiffs were in possession of the suit land. Ultimately, the District Court passed an order in Civil Misc. Appeal No.77 of 1995 setting aside the ex-parte order passed by the trial court below Ex.5 application and the matter was remanded to the trial court for deciding the application Ex.5 afresh on merits after hearing the parties and the parties were directed to maintain status quo. (xxiv) Before the trial court the learned SCA/9843/2006 16/67 JUDGMENT advocates appearing for the parties had shown their readiness and willingness to proceed with the hearing of the suit on day-to-day basis and accordingly, the trial court disposed of Ex.5 application directing both the parties to maintain status quo. (xxv) Thereafter defendant No.16 filed an application under the provisions of Order 1 Rule 10 of the Code of Civil Procedure ('the Code' for short) in Regular Civil Suit No.432 of 1995, for joining it as a necessary party. The learned trial Judge allowed the said application. (xxvi) After impleading defendant No.16 as party, defendant No.16 filed its written statement and thereafter also filed application Ex.85 seeking to raise 20 more issues as proposed in the said application. (xxvii) After having heard the learned advocates appearing for the parties, the learned trial Judge allowed the application Ex.85 filed by SCA/9843/2006 17/67 JUDGMENT defendant No.16 in part and accordingly added three more issues in the issues which were already framed vide Ex.50. In other words, by partly allowing the application Ex.85, the learned trial Judge has permitted defendant No.16 to raise issue Nos.2, 3 and 10, out of 20 issues proposed by defendant No.16 in application Ex.85, as issue Nos.6-A, 6-B and 6-C in the issues already framed vide Ex.50, whereas the prayer for raising rest of the issues proposed in the application Ex.85 has been rejected. It is this order which is now on the anvil of scrutiny before this Court in these two petitions, one being Special Civil Application No. 9843 of 2006 filed by the plaintiffs and another being Special Civil Application No.13040 of 2006 filed by defendant No.16. 7. Mr. A.J. Patel, learned advocate appearing for Mr. Shital Patel, learned advocate of the plaintiffs, at the outset submitted that it is true that issues can be recast and additional issues can be framed at any stage of the SCA/9843/2006 18/67 JUDGMENT proceedings. However, issues are to be framed on the basis of the pleadings of the parties and pleadings must be in consonance with the previous litigations between the parties. In instant case, defendant No.16 has been litigating with the plaintiffs since 1995 and prior thereto also defendant No.16 was aware about all the proceedings initiated before various revenue authorities as well as Civil Courts and also this Court. Therefore, according to Mr. AJ Patel, learned advocate of the plaintiffs, defendant No.16 was very much acquainted with the proceedings which have already reached to finality. Notwithstanding it, defendant No.16 has raised several irrelevant contentions in its written statement filed in the suit instituted by the plaintiffs being Regular Civil Suit No.432 of 1995 and after considering the said contentions, the learned trial Judge has passed appropriate orders and the lis is already concluded upto the High Court and now on the basis of the same contentions, defendant No.16 wants that some more irrelevant issues are framed so that the matter SCA/9843/2006 19/67 JUDGMENT can be delayed. According to Mr. Patel, in fact these issues have already been decided, therefore, the principles of res-judicata, estoppal and acquiescence would apply to the facts of the present case. Therefore, on the basis of the said principles, the issues which have been permitted to be added by the trial court in the issues already framed vide Ex.50 do not stand to scrutiny of this Court. (i) It is also asserted by Mr. Patel, learned advocate of the plaintiffs, that so far as the question as to whether the plaintiffs are agriculturists or not, it has been already determined by all the authorities upto the High Court, in favour of the plaintiffs, therefore, the said question is now not open to the scrutiny of the Civil Court. Besides this, defendant No.16 is a stranger. It has nothing to do with the question as to whether the plaintiffs are agriculturists or not. This is a question between the plaintiffs and erstwhile owners and erstwhile owners have raised the said question SCA/9843/2006 20/67 JUDGMENT before the revenue authorities, Civil Court as well as this Court and all the authorities and Courts all throughout held in favour of the plaintiffs that the plaintiffs have become agriculturists on the basis of the will executed by one Jyotiben. (ii)So far as the will executed by Jyotiben in favour of the plaintiffs is concerned, in that regard also so many proceedings have been initiated by the erstwhile owners. Ultimately the said will was found to be genuine and on the basis of the said will, the plaintiffs have become agriculturists and, therefore, it is now not open to the civil court to examine the question as to whether the will was genuine or forged one. (iii) So far as the petition filed by the plaintiffs labelling it as a petition filed under Article 226 of the Constitution of India is concerned, Mr. Patel, learned advocate of the plaintiffs, conceded that the petition is filed SCA/9843/2006 21/67 JUDGMENT under Article 227 of the Constitution. He also fairly conceded that the scope of a petition filed under Article 227 of the Constitution is very limited, confined only to correcting the jurisdictional error. In instant case, the trial court has committed jurisdictional error by adding three more issues in the issues already framed vide Ex.50, though the said issues have been decided by the revenue authorities, Civil Court and upto the High Court in favour of the plaintiffs. Therefore, this Court in exercise of the supervisory jurisdiction vested in it under Article 227 of the Constitution, can correct the jurisdictional error committed by the trial court as there is no embargo for correcting jurisdictional error committed by the trial court in a petition filed under Article 227 of the Constitution. (iv) The sum and substance of the submissions advanced by Mr. AJ Patel, learned advocate of the plaintiffs, is that the plaintiffs are agriculturists, they purchased the suit land from SCA/9843/2006 22/67 JUDGMENT the erstwhile owners and the erstwhile owners have executed sale deed in their favour, on the basis of the sale deed, mutation entries have been made and certified by the concerned revenue authorities and the proceedings initiated against the plaintiffs have also been decided in favour of the plaintiffs all throughout. Moreover, according to Mr. Patel, years together would be required for taking a decision on the additional issues framed pursuant to the impugned order passed by the learned trial Judge, and the said issues, which are not at all relevant and germain to the facts of the present case and are already decided by the concerned revenue authorities and upto this High Court, are raised with a malafide intention to delay the trial. (v) He, therefore, prayed that the petition filed by the plaintiffs being Special Civil Application No.9843 of 2006 deserves to be allowed whereas the petition filed by defendant No.16 being Special Civil Application No.13040 of 2006 deserves to be rejected and thereby the SCA/9843/2006 23/67 JUDGMENT order dated 23.2.2006 passed below application Ex.85 in Regular Civil Suit No.432 of 1995 so far as it relates to framing of additional three issues is concerned, may be quashed and set aside whereas non-framing of remaining issues may be upheld, to put it differently, the application Ex.85 may be rejected in toto. He, therefore, urged that Special Civil Application No.9843 of 2006 which is filed by the plaintiffs may be allowed whereas Special Civil Application No. 13040 of 2006 filed by defendant No.16 may be dismissed. 8. Per contra, Mr. Bharat J. Shelat, learned advocate with Mr. Deepak Joshi, learned advocate of defendant No.16, raised preliminary objection that the petition filed by the plaintiffs is in fact a petition under Article 227 of the Constitution of India and hence it is not open for this Court to examine all these aspects with regard to the legality and validity of the order passed by the trial court by which additional three issues, as proposed by defendant No.16, SCA/9843/2006 24/67 JUDGMENT were added in the issues already framed vide Ex.50, as the learned trial Judge has committed no jurisdictional error in framing the additional issues proposed by defendant No.16. Besides this, it is also emphasized by him that so far as the will executed by Jyotiben in favour of the plaintiffs is concerned, defendant No.16 was not a party before the authority before whom the will was challenged nor defendant No.16 was a party in the proceedings initiated before the revenue authorities by the erstwhile owners. Defendant No.16 for the first time has come in the picture while opposing four suits filed by the plaintiffs and, therefore, it is its legitimate right to raise all contentions before the Civil court. (i) So far as the decision arrived at in the revenue proceedings with regard to the mutation entries in village Form No.6 is concerned, according to Mr. Shelat, it does not determine the title of the parties but it is merely relevant for fiscal purpose and, therefore, the learned trial Judge has to examine the issues SCA/9843/2006 25/67 JUDGMENT with regard to the title of the property in civil suit filed by the plaintiffs and counter civil suit filed by defendant No.16 and according to him, all the issues proposed by defendant No.16 are relevant and the learned trial Judge ought to have allowed the application Ex.85 in toto. (ii)On aforesaid premises, according to him, no illegality or irregularity much less jurisdictional error has been committed by the learned trial Judge in adding three additional issues as issues Nos.6-A, 6-B and 6-C while passing order below application Ex.85 and therefore the impugned order does not call for any interference of this court in a petition field under Article 227 of the Constitution of India. According to him, the trial court ought to have framed all the issues proposed by defendant No.16 in the application Ex.85 and by not adding all the 20 issues proposed by defendant No.16 in application Ex.85 as additional issues in the issues already raised vide