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2016 DIGILAW 1177 (GUJ)

Sudhakar Shantilal Modia v. S. S. Pandvi

2016-06-24

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. This is one of the grossest cases of misuse of power and authority at the instance of respondent No. 1 in passing the impugned order dated 10.09.2014, and misuse and abuse of process of law by the respondent Nos. 3 to 8 in initiating proceedings in the Revenue Court for entering their names in revenue record as the legal heirs of the original tenants, though the predecessors of the said respondents had already lost all the legal proceedings upto the Supreme Court. 2. Though the case has a checkered history, the facts necessary for the purpose of deciding the present petition are that one Modia Mansukhlal Raiji, the original owner of the land bearing Survey No. 533 sold out the said land to Chhotalal Mansukhlal and Punamchand Shivlal Modhia on 25.02.39. The sale price was not paid at the time of sale. It appears that Mr. Punamchand Shivlal Modhia thereafter paid the full price, and he sold the land to Nayak Mansingji Mokamsingji. The original owner Mansukhlal died leaving behind his daughter Bai Punji as his legal heir. The said Bai Punji instituted a suit against Chhotalal, one of the purchasers from her father, for the unpaid sale price. Chhotalal also instituted suit being No. 2/42 for possession of land comprised in Survey No. 533 against Bai Punji, Mansukhlal Raiji, Nayak Mansingji, Punamchand, and the tenants who were in actual possession of the said land. The said tenants were arraigned as defendant Nos. 4 to 15 in the said suit, including the predecessor of the present respondent Nos. 3 to 8 i.e. Hussainbhai Nabibux Kunjda. The said suit being No. 2/42 filed by Chhotalal was decreed on 10.08.43, in which it was declared that the said Chhotalal and Punamchand were entitled to recover the possession of the land. Being aggrieved by the said decree, Bai Punji and Nayak Mansingji filed two separate Appeals being Nos. 310 of 194 3 and 317 of 1943. No Appeal was filed by the predecessor of the respondent Nos. 3 to 8 herein. The High Court modified the said decree by directing that the possession of half of the land should be given to Chhotalal on payment of Rs. 5000/- to Bai Punji. On 22.04.1943, Chhotalal applied for execution of the decree and the court directed the Collector to partition the property. 3 to 8 herein. The High Court modified the said decree by directing that the possession of half of the land should be given to Chhotalal on payment of Rs. 5000/- to Bai Punji. On 22.04.1943, Chhotalal applied for execution of the decree and the court directed the Collector to partition the property. Since the Collector had delivered symbolic possession to Chhotalal, he applied for delivery of actual possession. The Court, without passing any formal order, wrote letter to the Collector asking him to deliver actual possession to Chhotalal. On the matter being taken to the High Court, the High Court vide the order dated 17.07.57 directed the court to pass appropriate order after hearing the parties. In the said proceedings the tenants claiming through Mansukhlal filed their reply. However, the court on 20.03.58, passed an order directing actual possession to be delivered to Chhotalal. The said order having been challenged in the High Court, by preferring an Appeal by Hussain bhai Nabibux Kunjda, predecessor of the respondent No. 3 Banuben herein, the same was dismissed and Letters Patent Appeal against the said order was also dismissed. Civil Appeal being No. 316 of 1970 was preferred in the supreme court by the said Hussainbhai against the said judgment. 3. In the meantime, the said Hussainbhai and others instituted a Suit being No. 8 of 1967 against Chhotalal for declaration that they had become the owners of the said land under Section 32 of the Bombay Tenant and Agricultural Lands Act, 194 7 (hereinafter referred to as "the Tenancy Act") and for permanent injunction restraining the said Chhotalal from taking possession of the said land from the said plaintiffs, pursuant to the decree passed in the Suit No. 2/42, on the ground that the said decree was a nullity as the said plaintiffs had acquired protected tenancy rights in the suit land under the Tenancy Act. In the said suit, it was held inter alia that the decree passed in Suit No. 2/42 was not nullity and that the plaintiffs of the said suit had failed to prove that they were holding or cultivating the suit land personally. Being aggrieved by the said decree passed in the said suit, an Appeal was preferred by the said plaintiffs Hussainbhai and others, which came to be dismissed by the High Court in limine on 26.03.69. Being aggrieved by the said decree passed in the said suit, an Appeal was preferred by the said plaintiffs Hussainbhai and others, which came to be dismissed by the High Court in limine on 26.03.69. The said Hussainbhai and others, therefore, had filed Civil Appeal No. 317 of 1970 before the Supreme Court. 4. The Supreme Court vide the order dated 24.04.1973 dismissed both the Civil Appeals being No. 316 of 1970 and 317/1970 by holding as under:- "In our view, both appeals are without merit. As already observed, the trial court (Civil Judge S.D. Godhra) In Suit No. 8/67 in a well considered judgment came to the conclusion that the plaintiffs (appellants in this court) had never recognized the defendants as their landlords and for this reason the decree in Suit No. 2/42 did not violate any provision of the Bombay Tenancy Act, 1939. Suit No. 2/42 being for partition and recovery of possession involving title, could only be dealt with by Civil Judge and not by Mamlatdar. The decree in that suit was, therefore, not a nullity and actual physical possession in execution of the decree made in that suit could be delivered. The plaintiffs (appellant in this Court) were not entitled to the declaration that they had become owners of the suit land under section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. This Act came into force after the institution of Suit No. 2/42 with the result that the execution of that decree by the ordinary civil courts was permissible. This conclusion has not been shown to be erroneous, and certainly not so grossly erroneous as to justify interference by this Court on appeal by special leave. According to the settled practice of this Court, in appeals by special leave ordinarily this Court does not embark upon an inquiry into the correctness or otherwise of all conclusions of fact or even of law arrived at by the High Court and reappraise the evidence for itself. This Court may examine the evidence in those rare cases where there is misreading of evidence or where the effect of evidence has been seriously misunderstood or where important evidence making a fundamental difference in the ultimate conclusion has been completely ignored and it has led to injustice. Such is clearly not the case here. This Court may examine the evidence in those rare cases where there is misreading of evidence or where the effect of evidence has been seriously misunderstood or where important evidence making a fundamental difference in the ultimate conclusion has been completely ignored and it has led to injustice. Such is clearly not the case here. A faint attempt was made by Shri Shukla to show that the appellants had throughout remained in actual physical cultivating possession of the suit land which is stated to be 47 acres of agricultural land in the town of Godhra and for that purpose he referred us to the evidence on the question by submitting that this evidence had been ignored by the courts below. Reference to the entries in the revenue papers to which our attention was drawn, however, does not support the appellants' case. There is no clear evidence to that effect. Once it is held that the conclusion of the courts below that the appellants had not been in possession of the suit land as tenants has alleged is not open to challenge, their claim must fail. The decree in Suit No. 2/42 being a lawful decree and not being a nullity as contended on behalf of the appellants, it is difficult to appreciate their claim to protection against dispossession. The order granting delivery of actual possession to the respondents decree holder is, in the circumstances of the case, duly justified." 5. After the aforesaid order of Supreme Court, the actual possession of the land came to be handed over to the predecessor of the present petitioner Chhotalal in the year 1977. Even after handing over the possession of the land in question to the said Chhotalal, the present respondent Nos. 3 to 8 claiming to be the legal heirs of Hussainbhai and others, filed Civil Suit No. 59 of 1977 for declaration and injunction. However, the said suit along with other connected Suits were dismissed by the Civil Court. The First Appeal arising therefrom were also dismissed. However, thereafter Bai Bijli i.e. respondent No. 6 having trespassed in some portion of the said land, the petitioners had to file Regular Civil Suit No. 366 of 1978 for seeking possession of the said portion of the suit land in which the decree was passed in favour of the petitioners. The First Appeal arising therefrom were also dismissed. However, thereafter Bai Bijli i.e. respondent No. 6 having trespassed in some portion of the said land, the petitioners had to file Regular Civil Suit No. 366 of 1978 for seeking possession of the said portion of the suit land in which the decree was passed in favour of the petitioners. The First Appeal and the Second Appeal filed/therefrom were dismissed and the petitioners had to take the possession of the said disputed portion of land through the executing court. 6. Inspite of the aforestated position, and the predecessors of the respondent Nos. 3 to 8, and in some of the proceedings, the respondent Nos. 3 to 8 themselves having lost all the proceedings, they filed a Tenancy case being No. 10 of 2010 before the Mamlatdar and ALT seeking declaration that they were the tenants in respect of the land in question. However, the same came to be dismissed by the Mamlatdar and ALT, Dahod vide the order dated 07.09.2013. The said respondents filed the Tenancy Appeal being No. 20/2014 before the Deputy Collector, Dahod against the said order dated 07.09.2013. Pending the said Appeal, the respondent No. 1 Mamlatdar, pursuant to another application made by the respondent Nos. 3 to 8, for mutating their names in the revenue record, vide the order dated 10.09.2014 ordered to enter their names in the revenue record as the occupiers and the legal heirs of the original tenants. The said order dated 10.09.2014 passed by the respondent No. 1 being absolutely arbitrary and contemptuous, the petitioners have preferred the present petition challenging the said order. 7. Learned advocate for the petitioners, relying upon the orders passed by the various courts, more particularly the Supreme Court, submitted that the respondent Nos. 3 to 8 had made vexatious application for entering their names in the revenue record as the legal heirs of the original tenant, though the Supreme Court had confirmed the judgments and decrees passed by the civil court, holding that the predecessors of the said respondents had failed to establish their rights as tenants under the Tenancy Act. He also submitted that the respondent Nos. 3 to 8 had already made an application before the Mamlatdar for mutating their names and the same was dismissed against which the appeal was pending before Deputy Collector, however, the respondent Nos. He also submitted that the respondent Nos. 3 to 8 had already made an application before the Mamlatdar for mutating their names and the same was dismissed against which the appeal was pending before Deputy Collector, however, the respondent Nos. 3 to 8 again filed another application, which has been now granted by the Mamlatdar on extraneous condition. 8. However, learned senior counsel Mr. Shalin Mehta for the respondent Nos. 3 to 8, submitted that the predecessor of the respondent Nos. 3 to 8 was issued the purchase certificate under Section 32 of the Tenancy Act and the said certificate was never challenged by any of the petitioners. He further submitted that the said certificate having not been set-aside by any authority or by court, tenancy right of the respondent Nos. 3 to 8 still survived, and after death of original tenant, the respondent Nos. 3 to 8 as his legal heirs were entitled to get their names entered in the revenue record. He has relied upon the decision of the Supreme Court in the case of Saraswatibai Trimbak Gaikwad v. Damodhar D. Motiwale reported in (2002) 4 Supreme Court Cases 481, to submit that the Civil Court has no jurisdiction to decide the matter which are required to be dealt with by the Tribunal under the Tenancy Act. 9. At the outset, it is required to be stated that the Court at the time of admission hearing of the petition vide order dated 11.11.2014 had directed the Mamlatdar to remain present on the next date of hearing and accordingly the respondent No. 1 Mamlatdar had remained present on 27.11.2014, however, on the said date the court had observed that respondent No. 1 was not in his right senses and, therefore, the court had to call the Police. The court had also directed the Secretary, Revenue Department to inquire into the matter and to take appropriate steps against respondent No. 1. Today, the learned AGP has informed the court that the disciplinary action has already been initiated against respondent No. 1 and he has been suspended from the service. 10. Having regard to the submissions made by the learned advocates for the parties, it appears that respondent Nos. Today, the learned AGP has informed the court that the disciplinary action has already been initiated against respondent No. 1 and he has been suspended from the service. 10. Having regard to the submissions made by the learned advocates for the parties, it appears that respondent Nos. 3 to 8 after having lost in all the proceedings upto Supreme Court, had sought to establish their tenancy rights by making application for entering their names as the legal heirs of the original tenants. As stated hereinabove, the Supreme Court in the order dated 24.04.73 passed in Civil Appeals Nos. 316/70 and 370/70 preferred by the predecessors of the respondent Nos. 3 to 8 had specifically recorded the findings that the said appellants were not entitled to the declaration that they had become the owners of the suit land under Section 32 of the Bombay Tenancy Act. The Supreme Court upheld the decree of possession passed by the Civil Court in favour of the predecessor of the petitioners, land accordingly possession was also recovered by them through Executing Court. Though it is true that there was a sale certificate issued in favour of predecessor of the said respondents, and the same does not appear to have specifically challenged by the petitioners, however, in view of the decrees passed by the Civil Court, which have remained confirmed upto Supreme Court, the said respondents could not have re-agitated their claim under the Tenancy Act. The application filed by them before the respondent No. 1 for mutating their names as the heirs of original tenants when the Supreme Court had refused to recognise their tenancy rights, was nothing but a gross misuse of process of law. Respondent No. 1 has also allowed the said application misusing his powers under guise that the Revenue court had not passed any order for deleting the names of the predecessor of the said respondents from the revenue record. The said impugned order passed by the respondent No. 1 is not only in utter disregard of the provisions of the Revenue Act but is also in utter disregard of the order passed by the Supreme Court. Respondent No. 1 had clearly tried to over-reach the order of the Supreme Court, by passing the impugned order for which serious note is taken by this Court. 11. Respondent No. 1 had clearly tried to over-reach the order of the Supreme Court, by passing the impugned order for which serious note is taken by this Court. 11. There cannot be any disagreement with the decision of the Supreme Court in case of Saraswati Trimbak Gaikwad (supra) relied upon by the learned counsel Mr. Mehta for the respondents. However, it has no application to the facts of the present case. In the instant case, the rights of the parties had already stood determined and concluded by the Supreme Court and therefore it was not open for respondent Nos. 3 to 8 to re-agitate their claim for tenancy rights. 12. In that view of the matter, the impugned order being arbitrary, illegal and without any authority of law, deserves to be set-aside and is hereby set-aside. Since learned AGP has stated that disciplinary action has already been initiated against the respondent No. 1, no further order is passed in that regard. The petition stands allowed accordingly. Rule is made absolute.