SCA/23573/2005 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23573 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= MANGILAL KINDORILAL AGRAWAL - Petitioner(s) Versus GORDHANBHAI KARSHANBHAI PATEL & 2 - Respondent(s) ========================================================= Appearance : MR MB GANDHI for Petitioner(s) : 1, MR NILESH M SHAH for Respondent(s) : 1, MR MAYANK DESAI for Respondent(s) : 1, MR PRANAV G DESAI for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 10/07/2008 ORAL JUDGMENT 1. The petitioner – original applicant, third SCA/23573/2005 2/11 JUDGMENT party has initially filed Civil Revision Application No.6 of 2001 challenging the order passed by the learned Civil Judge (S.D.) Baroda below an application No.18 in Regular Civil Suit No.19 of 1999 on 30.6.2000 rejecting the petitioner's application for joining party in the said suit. 2. The Civil Revision Application was admitted and rule was issued by this Court and ad- interim relief was granted in terms of para 9(d) on 26.2.2001. By virtue of the said ad- interim relief further proceedings of Regular Civil Suit No.19 of 1999 pending in the Court of learned 3rd Joint Civil Judge (S.D.) at Baroda were stayed. This Civil Revision Application was subsequently converted into Special Civil Application No.23573 of 2005 by virtue of an order passed by this Court on 1.12.2005. 3. It is the case of the petitioner that the SCA/23573/2005 3/11 JUDGMENT property bearing Tikka No.2/4, Survey No.95 and Hissa No.95/1 to 95/4 is situated in the limits of Baroda Municipal Corporation, was purchased on 29.6.1977 by registered Sale Deed bearing No.1791 by the petitioner as well as Omprakash Gopilal Agrawal, Shasikant Gayalal Agrawal, Gopaldas T. Joshi and Jadavbhai Devjibhai Patel, in their joint names. The said property originally belonged to one Chandraprabhaben Govinddasji. From that date onward the property is in the joint name. One of the co-owners Jadavbhai Devjibhai, expired on 20.9.1982 and thereafter names of his heirs Bhimjibhai and others were added in the property card. The entire property is situated in Block No.10 bearing Municipal Census No.423 in Ward No.E in the Municipal record of the Baroda Municipal Corporation. 4. It is also the case of the petitioner that though the property is in the joint SCA/23573/2005 4/11 JUDGMENT ownership, part of the property being Survey No.95/1 has been sold by the heirs of Jadavbhai Devjibhai on 8.11.1995 by registered Sale Deed bearing SL No.4655. The property has been sold to the present respondent No.1 – original plaintiff, namely, Gordhanbhai Karshanbhai Patel. Despite the fact that the property was in the joint name the same was sold by the legal heirs of Jadavbhai Devjibhai and the new purchaser was carrying on some illegal construction in the property and hence the petitioner on 8.12.1998 gave a notice to the respondent No.2 – Baroda Municipal Corporation and requested that the illegal construction in the property be demolished. In response to the said letter on 14.12.1998 the respondent No.2 – Baroda Municipal Corporation gave a notice and all the relevant documents including property card were directed to be produced. Since the Corporation was likely to take an action against the respondent SCA/23573/2005 5/11 JUDGMENT No.1, he filed a Suit being Regular Civil Suit No.19 of 1999 on 4.1.1999 and an injunction was obtained in the said suit. 5. As soon as the petitioner came to know about the filing of the suit and obtained an injunction in the said suit, he moved an application Ex.18 for joining as party under Order 1 Rule 10 (2) of the Civil Procedure Code. The said application was opposed by the respondent No.1 vide Ex.33 and the learned trial Judge vide order dated 30.6.2000 has rejected the petitioner's application Ex.18 on the ground that the petitioner has not produced any document to prove that he has right in the disputed property and that he is in possession of the property. The learned trial Judge has also observed that the petitioner has failed to show that the disputed property is running in the joint name and he is joint owner. SCA/23573/2005 6/11 JUDGMENT 6. It is this order which is under challenge in the present petition. 7. Mr.M.B.Gandhi, learned advocate appearing for the petitioner has submitted that the learned trial Judge has failed to appreciate and consider that as many as 15 documents were produced alongwith the application showing that the property in question was in the joint name of the petitioner and four others. He has further submitted that the petitioner has produced the electricity bill to show that the property bearing Survey No.95/1 to 95/4 are in the joint name of the petitioner and other owners. He has further submitted that the Municipal Corporation Assessment Book shows the name of all the owners. He has further submitted that the petitioner has also produced property card for Survey No.95/1, 95/2, 95/3 and 95/4 which indicate that the property was way back running in the name of Bai Chandraprabha SCA/23573/2005 7/11 JUDGMENT Govinddasji Guru Motidasji and, thereafter, on 20.7.1977 the property was mutated in the name of petitioner alongwith four others, who purchased the property in their name. Relying on these documents Mr.Gandhi has strongly urged that the property being in the joint name, the petitioner is very much interested person and hence the learned trial Judge has wrongly rejected the petitioner's application for joining as party. He has, therefore, submitted that the order passed by the learned trial Judge is required to be quashed and set aside with a direction to the learned trial Judge to permit the petitioner to be joined as party in the said suit. 8. A reply is filed on behalf of the respondent No.1 and Mr.Nilesh M. Shah, learned advocate appears on behalf of the respondent No.1. Mr.Pranav G. Desai, learned advocate appears on behalf of the respondent Nos.2 and 3. In the reply filed on behalf of the respondent SCA/23573/2005 8/11 JUDGMENT No.1, averments made by the petitioner in the present petition have been denied and submissions made before the trial Court have been reiterated. 9. Having heard learned advocate appearing for the petitioner and having considered the averments made in the petition as well as affidavit-in-reply and having further considered the documents attached alongwith their respective pleadings, the Court is of the view that the learned trial Judge has committed error in observing that the petitioner has not produced any document to show that he has right in the disputed property and he is in possession of the said property. The learned trial Judge has further erred in observing that the petitioner has failed to show that the disputed property is in joint name and he is co-owner of the disputed property. From the documents produced before the trial Court as SCA/23573/2005 9/11 JUDGMENT well as before this Court it clearly appears that the property was purchased in the joint name wayback in 1977. It is true that the legal heirs of Jadavbhai Devjibhai have sold the property bearing Survey No.95/1 on 8.11.1995 to the respondent No.1 and from that date onwards no objection was raised by other co-owners. But it has not come on record that the petitioner was co-owner and property bearing Survey No.95/1 was given exclusively to the heirs of Jadavbhai Devjibhai. Be that as it may, all these facts can be examined during the course of trial by leading necessary evidence. The petitioner has prima facie satisfied that the property was purchased in the joint name and he was one of the co-owners. If ultimately it is proved that all the co-owners have got their respective share and partition had taken place and in the property in question the petitioner has no share in that case the Court may take appropriate decision, but on SCA/23573/2005 10/11 JUDGMENT this ground application for joining party cannot be rejected. The Court is, therefore, of the view that the order passed by the learned trial Judge on 30.6.2000 below an application Ex.18 in Regular Civil Suit No.19 of 1999 is required to be quashed and set aside and it is accordingly quashed and set aside. The Court is of the view that the present petitioner is a proper and necessary party. Accordingly, the petitioner is directed to be joined as party in the pending suit and he may be permitted to file his Written Statement and suit may be proceeded further. Since the suit is of 1999 the trial Court is directed to proceed with the suit and dispose it of as expeditiously as possible, preferably within a period of six months from the date of receipt of writ or from the date of receipt of certified copy of this order, which ever is earlier. 10. This petition is accordingly disposed off. SCA/23573/2005 11/11 JUDGMENT Rule is made absolute without any order as to costs. (K. A. PUJ, J.) kks