Case: State Of Gujarat Vs. Maliben Nathubhai(D) Tr.Lrs

have maintained an appeal before the Tribunal against the order of the Competent Authority and Deputy Collector after a lapse of about eight years. Thirdly, when under the provisions of the Act since every claimant is required to file a declaration under Section 6(1) thereof and Gangaben and Maliben did not file any such declaration, whether they could claim any right in the property of their father.14. Having heard learned counsel for the parties, we are of opinion that Bhulabhai Bhikhabhai having died sometime in 1947 when two of his sons, that is, Narsinbhai and Balubhai were still alive neither Harkhiben nor Gangaben and Maliben had any claim in the suit property of Bhulabhai Bhikhabhai under Hindu Law. Indeed, we must point out that neither Gangaben nor Maliben claimed any direct share in the suit property - they claimed a share through their mother Harkhiben but there is nothing to even suggest how Harkhiben acquired any share in the suit property. Such an averment is completely missing from the pleadings of the plaintiffs.15. Learned counsel for the plaintiffs has been unable to show us any decision or any other material to substantiate his claim that on the death of Bhulabhai, his widow Harkhiben acquired the suit property and on her death in 1957, after the Hindu Succession Act, 1956 came into operation, Gangaben and Maliben acquired a share in the suit property through Harkhiben. The submission of learned counsel proceeds on the assumption that on the death of Bhulabhai Bhikhabhai the suit property devolved solely upon his widow Harkhiben. There is no such averment made anywhere, nor is it substantiated in any manner. Learned counsel has not been able to show us any decision or any other material to show that this was the position in Hindu Law in 1947 when Bhulabhai Bhikhabhai died intestate. On the other hand, upon the death of the Karta of a joint family, his share will devolve only upon the remaining coparceners which in the present case were the two sons of Bhulabhai Bhikhabhai. It is therefore quite clear that neither Harkhiben nor Gangaben and Maliben had any share in Survey No.74 which is the land in question.16. We are also of opinion that the Tribunal was in error in entertaining the appeal filed by the plaintiffs after a gap of about eight years from the passage of the order dated 16th December, 1983 by the Competent Authority and Deputy Collector. The delay was totally inexplicable. That apart, the order dated 16th December, 1983 had merged with the order passed by the Tribunal on 19th January, 1988. That being the position, the Tribunal could not have reopened the proceedings which had already terminated before it. It has been held in Kunhayammed and Ors. v. State of Kerala & Ors., (2000) 6 SCC 359 that the principle of merger of an order with the order of a superior court would apply equally to orders passed by tribunals. Therefore there can be no doubt that the order passed on 16th December, 1983 by the Competent Authority and Deputy Collector merged with the order of the Tribunal passed on 19th January, 1988 and which order attained finality.17. In paragraphs 12 and 44(i) of the Report, it was held as under:"The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.""(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."18. Finally, in our view if the plaintiffs did in fact claim to have a right in the property of Bhulabhai Bhikhabhai, they ought to have filed a declaration under Section 6(1) of the Act. That they did not do so when they attained the age of majority is a clear indication that they were fully aware that they had no right in the property of Bhulabhai Bhikhabhai who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they cannot be permitted to indirectly make a claim which they failed to make directly.19. Whichever way the issues are looked at, we have no doubt that the Urban Land Tribunal was in error in entertaining the proceedings initiated by the plaintiffs in 1991 against the order dated 16th December, 1983 passed by the Competent Authority and Deputy Collector. That being the position, the orders passed by the Tribunal on 31st March, 1992 and by the High Court by the impugned order upholding the order passed by the Tribunal deserve to be and are set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. Having heard learned counsel for the parties, we are of opinion that Bhulabhai Bhikhabhai having died sometime in 1947 when two of his sons, that is, Narsinbhai and Balubhai were still alive neither Harkhiben nor Gangaben and Maliben had any claim in the suit property of Bhulabhai Bhikhabhai under Hindu Law. Indeed, we must point out that neither Gangaben nor Maliben claimed any direct share in the suit property - they claimed a share through their mother Harkhiben but there is nothing to even suggest how Harkhiben acquired any share in the suit property. Such an averment is completely missing from the pleadings of the plaintiffs.15. Learned counsel for the plaintiffs has been unable to show us any decision or any other material to substantiate his claim that on the death of Bhulabhai, his widow Harkhiben acquired the suit property and on her death in 1957, after the Hindu Succession Act, 1956 came into operation, Gangaben and Maliben acquired a share in the suit property through Harkhiben. The submission of learned counsel proceeds on the assumption that on the death of Bhulabhai Bhikhabhai the suit property devolved solely upon his widow Harkhiben. There is no such averment made anywhere, nor is it substantiated in any manner. Learned counsel has not been able to show us any decision or any other material to show that this was the position in Hindu Law in 1947 when Bhulabhai Bhikhabhai died intestate. On the other hand, upon the death of the Karta of a joint family, his share will devolve only upon the remaining coparceners which in the present case were the two sons of Bhulabhai Bhikhabhai. It is therefore quite clear that neither Harkhiben nor Gangaben and Maliben had any share in Survey No.74 which is the land in question.16. We are also of opinion that the Tribunal was in error in entertaining the appeal filed by the plaintiffs after a gap of about eight years from the passage of the order dated 16th December, 1983 by the Competent Authority and Deputy Collector. The delay was totally inexplicable. That apart, the order dated 16th December, 1983 had merged with the order passed by the Tribunal on 19th January, 1988. That being the position, the Tribunal could not have reopened the proceedings which had already terminated before it. It has been held in Kunhayammed and Ors. v. State of Kerala & Ors., (2000) 6 SCC 359     that the principle of merger of an order with the order of a superior court would apply equally to orders passed by tribunals. Therefore there can be no doubt that the order passed on 16th December, 1983 by the Competent Authority and Deputy Collector merged with the order of the Tribunal passed on 19th January, 1988 and which order attained finality.Finally, in our view if the plaintiffs did in fact claim to have a right in the property of Bhulabhai Bhikhabhai, they ought to have filed a declaration under Section 6(1) of the Act. That they did not do so when they attained the age of majority is a clear indication that they were fully aware that they had no right in the property of Bhulabhai Bhikhabhai who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they cannot be permitted to indirectly make a claim which they failed to make directly.19. Whichever way the issues are looked at, we have no doubt that the Urban Land Tribunal was in error in entertaining the proceedings initiated by the plaintiffs in 1991 against the order dated 16th December, 1983 passed by the Competent Authority and Deputy Collector. That being the position, the orders passed by the Tribunal on 31st March, 1992 and by the High Court by the impugned order upholding the order passed by the Tribunal deserve to be and are set aside.