Hussainbhai Allarakhbhai Dariaya & Ors vs State Of Gujarat & Ors

3. After contest, the said suit was decreed in part by the Civil Judge, Senior Division, Amreli by judgment and decree dated 29.11.2003. The trial court declared that the plaintiff Jamat was the owner of plot Nos. 23, 24, 25,26 and 28 (described in the annexed order of District Development Officer dated 13.10.1977, canceling the auction of those plots) and granted a permanent injunction restraining the defendants from obstructing or interfering with the possession of the plaintiff Jamat. The trial court however rejected the claim of the plaintiff Jamat in regard to old survey No.248 in the absence of exact measurements and boundaries of the said land.

5. The compromise agreement referred to in the said pursis dated 3.8.2004 was entered into between two groups of residents of Damnagar, namely the Samast Sunni Muslim Jamat as the leaders of the Muslim Samaj and the leaders of the Samast Hindu Samaj. The said compromise is extracted below :

7. The appellants who claimed to be the individual members of the Sunni Jamat, and who were not parties either to the suit or the first appeal, were aggrieved by the said compromise resulting in disposal of the first 6 appeal as according to them, 30,000 sq. ft. of Kabrastan land had been unauthorisedly given to Akshar Purshottam Trust. According to appellants the Sunni Jamat had no legal authority to deal with or give away the Kabrastan (wakf) land for any purpose other than the use of Muslims in Damnagar. They therefore filed a second appeal before the Gujarat High Court challenging the order disposing of the first appeal. As they were not parties to the first appeal, they also filed an application seeking permission to file the appeal.

15. The pursis (Memo - Ex.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal. The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court. The first appellate court could not therefore direct that a decree be drawn up in terms of the `compromise' between two sets of non- parties, while dismissing the first appeal as withdrawn. Though the order dated 3.8.2004 disposing of the first appeal stated that a decree shall be drawn according to the "agreement" submitted along with the consent pursis, no such decree has been drawn. We are informed that recently the first appellate court has made an order refusing to draw a decree in terms of the compromise between non-parties, as the appeal was disposed of in pursuance of the memo of withdrawal. Be that as it may.

16. When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the 14 withdrawal of the first appeal on the ground that a `compromise' was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of any non-party, as there is no appealable order or decree.

17. We are therefore of the view that the appeal by the appellants was not maintainable and the refusal to grant leave to appeal was justified, though for reasons different from what has been mentioned by the High Court. We however make it clear that the refusal to grant leave would not come in the way of the appellants pursuing any claim or remedies, if any, available in accordance with law.