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2024 DIGILAW 1011 (GUJ)

Rajabhai Bhojabhai Mer v. Pravinbhai Meghjibhai

2024-04-24

SANDEEP N.BHATT

body2024
ORDER : 1. Rule returnable forthwith. Learned advocate Mr. S.P. Majmudar waives service of rule on behalf of the respondent No. 2. 2. The present petition is filed praying for the following reliefs: “(A) Your Lordships may be pleased to issue an appropriate writ, order or direction, quashing and setting aside the impugned order dated 13/02/2023 passed below Exhibit 23 in Special Civil Suit No. 84/2019 by learned Sixth Additional Senior Civil Judge, Jamnagar and be further pleased to grant relief as prayed for, by issuing necessary direction in the said context. (B) Your Lordships may be pleased pending admission hearing and final disposal of this petition, be pleased to stay the operation, implementation and execution of the impugned order dated 13/02/2023 passed below Exhibit-23 in Special Civil Suit No. 84/2019. (C) Your Lordships may be pleased to pass such other and further orders as maybe deemed just and proper.” 3. Brief facts of the case are as under: 3.1 Raja Bhoja and Devchand Nathu had entered into an agreement in the year 1973 to sell agriculture land of Naghedi Sim on the east farm named Lunasar admeasuring approximately acre 4-8 guntha having Survey No. 15 on 19/11/1973 at the rate of Rs. 1300/- per vigha, thus for total consideration Rs. 5000/-. As a part of this deal Raja Bhoja had paid Rs. 1000/- to Devchand Nathu, at that time Devchand Nathu had handed over the possession of the said land. Thereafter Devchand Nathu went to Kenya, the balance sale consideration Rs. 4000/- was to be paid. Raja Bhoja had paid the balance sale consideration Rs. 4000/- on 29/2/1980 and thereafter additional amount of Rs. 2000/- was paid on 19/07/1980. As per the terms of the agreement Raja Bhoja was always ready and willing to perform his part of the agreement. However, in the meanwhile Devchand Nathu expired in Kenya, therefore the registered sale deed for the said land could not be executed. 3.2 Thereafter for the protection of his rights vested in the said land Raja Bhoja Mer had filed Regular Civil Suit No. 27/2013 before the court of the Principal Senior Civil Judge, Jamnagar for declaration and permanent injunction. However, in the meanwhile Devchand Nathu expired in Kenya, therefore the registered sale deed for the said land could not be executed. 3.2 Thereafter for the protection of his rights vested in the said land Raja Bhoja Mer had filed Regular Civil Suit No. 27/2013 before the court of the Principal Senior Civil Judge, Jamnagar for declaration and permanent injunction. In the meanwhile the power of attorney holder executed a registered sale deed for the said land in favour of Farukh Haji Amad, therefore as per the the power of attorney holder Pravinbhai Meghji and Farukh Haji Amad were joined as party in the said proceedings. In the matter of Regular Civil suit No. 27/2013 the learned 4th Additional Senior Civil Judge, Jamnagar was pleased to grant interim injunction till the hearing of Exh.5 application vide its orders dated 16/11/2018. The above orders dated 16/11/2018 came to be challenged by the defendants before the honourable High Court of Gujarat in CRA No. 499/2019. Wherein the honourable High Court was pleased to grant ad-interim relief till the returnable date. Thereafter the respondent Raja Bhoja expired on 23/9/2020, and the learned advocate appearing for the respondent declared before the honourable court and therefore the advocate for the respondent had requested time so that the legal heirs may be brought on records. Thereafter due to the prevailing pandemic COVID-19 the matter was not listed, and is pending before the honourable High Court at this stage. 3.3 During the period, when the Regular Civil Suit No. 27/2013 was pending before the honourable court, the heirs of Devchand Nathu had made a Release Deed in favour of Pravin Meghi having Release Deed No. 646/15 on 4/11/15. Amongst the authors of the Release Deed, one author Kishorilal had expired on 6/1/2017. Taking advantage of this fact Pravin Meghji had on the basis of the said Release Deed executed Sale Deed No. 908/2018 on 24/9/2018 and sold the said land to Farukh Amad. 3.4 After Raja Bhoja came to know about the above movement he had immediately filed Special Civil Suit No. 84/2019 for declaration and for holding the sale deed null and void and for obtaining permanent injunction, and also prayed for directions so that sale deed be executed in favour of Raja Bhoja for the said land. 3.4 After Raja Bhoja came to know about the above movement he had immediately filed Special Civil Suit No. 84/2019 for declaration and for holding the sale deed null and void and for obtaining permanent injunction, and also prayed for directions so that sale deed be executed in favour of Raja Bhoja for the said land. The original plaintiff Rajabhai Bhojabhai Mer had instituted Special Civil Suit No. 84/2019 before the Jamnagar Principal Senior Civil Judge Court against the above respondents (original defendants) for holding the release deed and sale deed nullity and for executing the registered sale deed and for permanent injunction inter alia praying that the original defendants present respondents be restrained from using the suit land and taking the income from the agriculture land of Naghedi Sim on the east farm named Lunasar admeasuring approximately acre 4-8 guntha having Survey No. 15, and also the respondents be restrained from transferring, alienating and entrusting to anybody as well as not to raise right of any other person over the suit property. As per the contentions of the petitioner, the said suit property was agreed to be sold on 19/11/1973 to the plaintiff Rajabhai by Devchand Nathu and the said agreement to sell is in force as on date. 3.5 The plaintiff has averred that at the time of making the agreement the possession of the suit property was handed over to the plaintiff and since then till date the plaintiff has been in occupation and use without any kinds of obstruction, hindrance or interference and have been harvesting crops since more than past 35 years. Therefore by law of Adverse Possession also the plaintiff has become the owner. The plaintiff has further claimed that with regard to the suit property that while the agreement to sell in favour of the plaintiff is in force in the meanwhile with mala-fide and for creating complications Pravin respondent No. 1 herein had made release deed entered his name in the revenue records, and on the basis of the same sale deed was made in favour of the defendant Farukh Haji Ahmed Vadivala that is the respondent No. 2 herein. Thus for holding the said release deed and sale deed nullity ab initio the above numbered suit is filed. Thus for holding the said release deed and sale deed nullity ab initio the above numbered suit is filed. 3.6 However, while dealing with all these legal complications the plaintiff had made a registered Will that is Testament in favour of the petitioner having register No. 3172 dated 10/6/2014 and by way of the said Will that is Testament regarding the suit property all rights, shares are Willed in favour of the present petitioner. Therefore the rights and interests of the present plaintiff in the suit property have arisen. 3.7 Thereafter the original plaintiff Rajabhai Bhojabhai Mer had expired on 23/9/2020 during the pendency of the said suit. The present petitioner hence made an application Exh.23 in the above numbered suit for joining as legal representative on basis of Will that is Testament made in his favour qua the suit property on 3/11/2020. The said application Exh.23 came to be arbitrarily and without application of mind dismissed vide the impugned order dated 13/02/2023 by the learned Sixth Additional Senior Civil Judge, Jamnagar. The petitioner states that on the basis of the registered Will that is Testament made in his favour he has vested interest of the property and therefore it is imperative that he should be joined in the above numbered suit and present his case, and as such any orders that may be passed in the above numbered suit are likely to have direct effect on the petitioner. Therefore if any orders are passed in his absence would amount to grave injustice caused to the present petitioner. 3.8 Being aggrieved and dissatisfied with the said order passed below Exhibit 23, the present petitioner has approached this Honourable Court for protection of his rights created by way of registered Will i.e. Testament. 4. Heard learned Senior Advocate Mr. Shalin Mehta with learned advocate Ms. Krupali N. Bhatt for the petitioner and learned advocate Mr. Jamshed Kavina with learned advocate Mr. S.P. Majmudar for the respondent No. 2. Perused the material available on the record, more particularly, the impugned order dated 13.02.2023 passed below Exhibit 23 in Special Civil Suit No. 84 of 2019. 5. Mr. Shalin Mehta with learned advocate Ms. Krupali N. Bhatt for the petitioner and learned advocate Mr. Jamshed Kavina with learned advocate Mr. S.P. Majmudar for the respondent No. 2. Perused the material available on the record, more particularly, the impugned order dated 13.02.2023 passed below Exhibit 23 in Special Civil Suit No. 84 of 2019. 5. Mr. Mehta, learned Senior Advocate for the petitioner, submitted that the petitioner - Malde Parbat Modhvadiya has filed application (Exh.23) under the provisions of Order XXII Rule 3 of the Civil Procedure Code for joining him as Legal Representative as the original plaintiff has expired during the pendency of the proceedings on 23.09.2020, on basis of registered will that is Testament made in his favour by the original plaintiff. It is submitted that the said application (Exh.23) came to be dismissed by the learned 6th Additional Senior Civil Judge, Jamnagar vide order dated 13.02.2023 against which, the petitioner has approached this Hon'ble Court by way of present petition challenging the order dated 13.02.2023 rendered in Special Civil Suit No. 84/2019. It is submitted that this Hon'ble Court has issued notice vide detailed order dated 23.03.2023 and the Respondent No. 2 has filed reply on dated 29.08.2023. It is submitted that arguments concluded by both the parties on dated 16.04.2024. At the same instance Respondent No. 2 has objected that the application (Exh.23) was produced without delay application before the Ld. Trial Court on dated 02.07.2021. Therefore, on that context only Hon'ble Court has directed both the parties to provide information regarding correct date of presentation of application before the Ld. Trial Court, which is as under: (A) It is submitted that the application (Exh.23) was prepared on dated 03.11.2020. (B) It is submitted that due to Covid-19 Pandemic Ld. Trial Courts were closed therefore, the application (Exh.23) was presented before the Ld. Trial Court on dated 02.07.2021. 5.1 The learned advocate for the petitioner has emphasized on the order passed by the Hon’ble Apex Court in M.A. No. 21 of 2022. It is submitted that the presentation date of the application is 02.07.2021 before the Ld. Trial Court is covered in the period (from 15.03.2020 to 28.02.2022) of that order of the Hon'ble Supreme Court. Therefore, delay application is not required in that period. Therefore, in view of the above submissions, this Court may be pleased to pass appropriate order. 6. Learned advocate Mr. Trial Court is covered in the period (from 15.03.2020 to 28.02.2022) of that order of the Hon'ble Supreme Court. Therefore, delay application is not required in that period. Therefore, in view of the above submissions, this Court may be pleased to pass appropriate order. 6. Learned advocate Mr. Jamshed Kavina for the respondent No. 2 has submitted that the petitioner is not legal representative of the original plaintiff of Special Civil Suit No. 84/2019 and therefore does not deserve to be impleaded in place of the original plaintiff in the said suit. It is further submitted that the original plaintiff Rajabhai Bhojabhai Mer expired on 23.09.2020 and the application Exh.23 was only filed on 02.07.2021. Therefore the present petitioner has made a false averment in Para no. 2.14 of the present petition and on this sole ground, the present petition deserves to be dismissed. It is also submitted that the original plaintiff Rajabhai Bhojabhai Mer expired on 23.09.2020 and the application Exh.23 was only filed on 02.07.2021. Therefore there is inordinate, unexplained delay in filing of present application Exh.23 on behalf of the original plaintiff. In the present facts and circumstances, the suit would abate as per Order 22 Rule 3 (2) of the Code of Civil Procedure, 1908. Further the petitioner has moved no application for setting aside the delay and abatement and therefore also the present application was rightly rejected. Further it has been held by the Hon'ble Apex Court in judgment reported in 2000 (0) AIJEL SC 22320 Para-6 that since application for condonation of delay was not filed under Section 5 of the Limitation Act, there is no jurisdiction of the Hon'ble Court to allow said application. He has further submitted that the petitioner claims rights on the basis on so called registered will No. 3172 dated 10.06.2014 and it is pertinent to note that the said will creates no rights in favour of the present petitioner, further in the said will it is clearly stated that the present petitioner is only a neighbour of the original plaintiff. 6.1 He has further submitted that the Special Civil Suit No. 84/2019 filed by the original plaintiff Rajabhai Bhojabhai Mer is itself is completely bogus and vexatious and is essentially praying for specific performance of a so called agreement to sell of the year 1973, along with cancellation of Registered Release Deed No. 646/15 and cancellation of registered sale deed No. 908/18, despite having prayed for declaration and injunction over the same land by way of another suit being Regular Civil Suit No. 27/2013. which is still pending and has been stayed by this Hon'ble Court by order dated 16.11.2018 in CRA No. 499/2019. Therefore also the present petitioner's application Exh.23 for being joined as legal representative of the original plaintiff deserved to be rejected. 6.2 It is further submitted that in the said will of the original plaintiff, the petitioner has only given rights to the present petitioner with regard to Regular Civil Suit No. 27/2013 and there is absolutely no mention of the present suit being Special Civil Suit No. 84/2019. Therefore in absence of such a specific stipulation, it cannot be assumed that the original plaintiff had given any right, title or interest to the present petitioner. Further the will does not create any right, title or interest in the present petitioner and merely gives him alleged rights out of the previous suit being Regular Civil Suit No. 27/2013. In the earlier suit, the original plaintiff had himself pleaded for a declaration that he is owner of the suit property by adverse possession and therefore since no such rights accrued to the original plaintiff yet, the will itself cannot create any right, title or interest in the present petitioner. 6.3 He has also further submitted that the will itself is suspicious in nature as it can be seen that the so called thumb impression of the original plaintiff is spread and therefore until the validity of the will is proved under Section 68 of the Evidence Act, 1872 or probate is obtained. It is further submitted that the Ld. Trial Court has correctly observed that in the present peculiar facts and circumstances, the present petitioner should have obtained probate of the said will since the rights of the original plaintiff have also not crystallized. It is further submitted that the Ld. Trial Court has correctly observed that in the present peculiar facts and circumstances, the present petitioner should have obtained probate of the said will since the rights of the original plaintiff have also not crystallized. The above proposition has been laid down by the Hon'ble Apex Court as well, in the judgment reported in 2021 (0) AIJEL SC 67695 Para-5 wherein it is held that if there is any dispute with respect to the title of the property, the party who is claiming title or right on the basis of the will has to approach the appropriate civil court and get his rights crystallized first. Since the petitioner herein has preferred no such civil suit nor obtained probate, he cannot be allowed to be impleaded as legal representative of the original plaintiff on the basis of an unproved, suspicious will. Similar proposition has been laid down by this Hon'ble Court in judgment dated 16.12.2009 passed in Special Civil Application No. 13154 of 2009 Para-4. 6.4 It is further submitted that the Ld. Trial Court has correctly observed that in the present case the lineal descendants of the original plaintiff are still alive and yet they have given no application to be joined in place of the deceased original plaintiff in the suit. It is also submitted that the impugned order is just, proper and correct and no interference of this Hon'ble Court under Article 227 of the Constitution of India is warranted. Further the Ld. Court below has not committed any error in fact or law and therefore this Hon'ble Court may not interfere with the discretion duly exercised by the Trial Court under Article 227 of the Constitution of India as laid down by the Hon'ble Apex Court in the case reported in Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 . 6.5 Therefore, it is prayed by the learned advocate for the respondent No. 2 that the impugned order dated 13.02.2023 passed below Exh.23 by the Ld. 6th Add. Senior Civil Judge, Jamnagar in Special Civil Suit No. 84/2019 be upheld and the present petition may be dismissed. 7. I have considered the rival submissions made at the bar. 6.5 Therefore, it is prayed by the learned advocate for the respondent No. 2 that the impugned order dated 13.02.2023 passed below Exh.23 by the Ld. 6th Add. Senior Civil Judge, Jamnagar in Special Civil Suit No. 84/2019 be upheld and the present petition may be dismissed. 7. I have considered the rival submissions made at the bar. It transpires that the present petition is filed by the present petitioner, as the original-plaintiff/Rajabhai Bhojabhai Mer had expired on 23.09.2020 during the pendency of the Special Civil Suit No. 84 of 2019. It also transpires that the application is filed by the present petitioner at Exh.23 in the above-mentioned suit for joining him as legal representative on the basis of Will that is Testament made in his favour qua the suit property on 03.11.2020 and that application at Exh.23, came to be dismissed by the trial Court and therefore, the present petition is filed. It transpires that it is the case of the petitioner that on the basis of registered Will i.e. Testament made in his favour, he is vested with interest in the property and therefore, it is imperative that he should be joined in the above-mentioned suit and should be given opportunity to represent his case, as such orders, that may be passed in the suit, are likely to have direct effect on the petitioner. It transpires from the record that the present petitioner can be considered as legal representative, looking to the language of Section 2 Sub-Section 11 of the Code of Civil Procedure (C.P.C.) 1908, which reads as under: “2. (11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or suited.” 8. It also transpires that the application was submitted before the trial Court for impleadment on 02.07.2021 i.e. the application at Exh.23. However, it also reflects that the application was prepared on 03.11.2020 and copy of the same was also served to the other side on 03.11.2020. It also transpires that the application was submitted before the trial Court for impleadment on 02.07.2021 i.e. the application at Exh.23. However, it also reflects that the application was prepared on 03.11.2020 and copy of the same was also served to the other side on 03.11.2020. It also transpires that due to the Covid-19 Pandemic, the Hon’ble Apex Court has also considered such a situation and has given specific direction in Miscellaneous Application No. 21 of 2022 in Miscellaneous Application No. 665 of 2021 in Suo Motu Writ Petition (C) No. 3 of 2020 and other cognate matters, which reads as under: “5. Taking into consideration the arguments advanced by Ld. Counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with following directions: (I) The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.” 9. It further transpires that the application was prepared on 03.11.2020, but it could not be presented on that day and produced on 02.07.2021. Therefore, contentions raised by the learned advocate for the respective respondent that the suit will abate as per the provisions of Order XXII Rule 3(2) is not required to be taken into consideration. There is no dispute about ratio of the judgment of the Hon’ble Apex Court in the case of Ragho Singh vs. Mohan Singh, 2000 (0) AIJEL-SC 22320, which is cited at the bar by the learned advocate for the respondent No. 2, more particularly, Para 6, which reads as under: “6. We have heard learned Counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the Judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs.” 9.1 Moreover, there is no dispute regarding the ratio laid down in the judgment of the Hon’ble Apex Court in the case of Jitendra Singh vs. State of Madhya Pradesh, 2021 (0) AIJEL-SC 67695, more particularly, Para 5, which reads as under: “5. We have heard Shri Nishesh Sharma, learned Advocate appearing for the petitioner. It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.05.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.” 9.2 Furthermore, there is no dispute regarding the ratio laid down by the judgment dated 16.12.2009 of this Hon’ble Court rendered in the case of Babubhai Mervanbhai Patel vs. State of Gujarat and Another passed in Special Civil Application No. 13154 of 2009, more particularly, Para 4, which reads as under: “4. Heard Mr. Majmudar, learned advocate appearing on behalf of the petitioner and considered the impugned judgment and order passed by Gujarat Revenue Tribunal dated 24/09/2009 as well as earlier judgment and order passed by the learned Single Judge dated 24/09/2004 in the aforesaid Special Civil Application No. 9641 of 1993. It is not in dispute that the petitioner is claiming the ownership on the basis of the transfer/Will executed by the original land owner - Kashiben. It is not disputed that at the relevant time when there was transfer of the land in question in favour of the petitioner on the basis of Will executed by Kashiben - original land owner, the petitioner was not an Agriculturist. Earlier Mamlatdar & ALT and Deputy Collector (Land Reforms), Valsad held that transfer of the land in question by Will executed by Kashiben in favour of the petitioner as illegal and in breach of Section 43 of the Bombay Tenancy and Agricultural Lands Act, which came to be confirmed by Gujarat Revenue Tribunal. Earlier Mamlatdar & ALT and Deputy Collector (Land Reforms), Valsad held that transfer of the land in question by Will executed by Kashiben in favour of the petitioner as illegal and in breach of Section 43 of the Bombay Tenancy and Agricultural Lands Act, which came to be confirmed by Gujarat Revenue Tribunal. As stated hereinabove, against the judgment and order passed by Gujarat Revenue Tribunal in Revision Application No. TEN/BS/10/1988 dated 10/06/1993 upholding the order dated 01/12/1987 of the Deputy Collector, Valsad by which the appeal of the petitioner against the order of Mamlatdar & ALT dated 20/04/1985 under Section 84-C of the Bombay Tenancy and Agricultural Lands Act was dismissed, the petitioner preferred aforesaid petition being Special Civil Application No. 9641 of 1993 and learned Single Judge while partly allowing and remanding the matter to the Tribunal held and observed as under: “It is clear from the provisions of Section 43 of the said Act that restriction on transfer of land imposed thereunder was clearly in respect of the transfers inter vivos and the provisions could not be invoked in the context of the Wills under which there is no transfer inter vivos. In P.B. Gor (supra), the learned Single Judge of this Court, in terms held, in the context of the provisions of Section 43 of the said Act, that, Will is not an instrument of transfer of property by sale, gift, exchange, mortgage, lease or assignment, nor is it an agreement. There is a devolution of interest of deceased by succession in the nominated persons under a Will and not transfer of interest of a person in any of the modes of transfer prescribed under the said provision, which all relate to transfer inter vivos. It was held that neither Section 43 nor Section 63 of the said Act envisage prior permission of the authorities for executing a Will that would take effect after the death of a person, which he has a right to vary, cancel or modify any time before his death as many times as the testator desires. The Revenue Tribunal did not take into consideration this aspect of the matter and proceeded to rely on a copy of the Will which was shown to it on the basis of which the petitioner was claiming his rights. The Revenue Tribunal did not take into consideration this aspect of the matter and proceeded to rely on a copy of the Will which was shown to it on the basis of which the petitioner was claiming his rights. In fact, a Will is required to be proved in accordance with law and a copy of the Will could not have been straightaway relied upon without the original Will having been proved as per the law by examining the attesting witness in consonance with the provisions of Section 68 of the Evidence Act. The Tribunal did not examine whether the question of validity of a Will could have been gone into by it in this matter. However, under Section 84-C of the Act, it is not only in respect of the transfer inter vivos, but also in respect of acquisition of any land that the Mamlatdar & ALT is empowered to make an inquiry to find out whether the transfer or acquisition is or is not invalid. It was the case of the petitioner that he had acquired the property under a Will, and therefore, it was not necessary to brand the Will as a transfer document. It was first required to be seen whether the petitioner was able to establish the Will in accordance with law and whether there was any acquisition of land made which can be said to be invalid under the provisions of the said Act.” Thereafter on remand, by impugned judgment and order, Gujarat Revenue Tribunal has again held that the transfer in favour of the petitioner on the basis of the Will executed by Kashiben is illegal and in breach of Section 43 of the Bombay Tenancy and Agricultural Lands Act by holding and observing that the petitioner has failed to prove the Will in accordance with law as neither the witnesses to the Will are examined by the petitioner nor any probate was obtained by the petitioner on the basis of Will executed by Kashiben and/or any Civil Suit filed by the petitioner on the basis of the said Will. Thus, the Tribunal has held that the petitioner has failed to prove the Will in accordance with law (on the basis of which the petitioner is claiming the title over the land in question). Thus, the Tribunal has held that the petitioner has failed to prove the Will in accordance with law (on the basis of which the petitioner is claiming the title over the land in question). Over and above, the aforesaid findings, the Tribunal has also considered the decision rendered by the Division Bench in the case of Rajenbhai Baldevbhai Shah (supra) by observing and holding that the Division Bench has held that transfer of the agricultural land by Will in favour of the non-agriculturist is not permissible and is in breach of Section 43 of the Bombay Tenancy and Agricultural Lands Act. Therefore, the decision of the Tribunal is not solely on the decision of the Division Bench (supra). As stated hereinabove while remanding the matter to the Tribunal, learned Single Judge in Special Civil Application No. 9641 of 1993 has specifically held and observed that first of all Tribunal is required to consider as to whether the petitioner has proved the Will in accordance with law or not and/or Will is required to be proved in accordance with law and a copy of the Will could not have been straightway relied upon without the original Will having been proved as per the law, by examining the attesting witness in consonance with the provisions of Section 68 of the Evidence Act. As stated hereinabove, Tribunal has specifically given the findings that the petitioner has failed to prove the Will in accordance with law either by examining the attesting witnesses or by obtaining probate on the basis of the Will. In view of the aforesaid facts and circumstances, only in a case the petitioner has proved the Will then and then only the further question as to whether transfer in favour of the petitioner on the basis of such a Will is hit by Section 43 of the Bombay Tenancy and Agricultural Lands Act or not is required to be considered. Therefore, when the petitioner has failed to prove the Will in accordance with law, further question as to whether transfer on the basis of such a Will would be hit by Section 43 of the Bombay Tenancy and Agricultural Lands Act or not, would not arise. The aforesaid aspect is required to be considered only when the petitioner has proved the Will in accordance with law. The aforesaid aspect is required to be considered only when the petitioner has proved the Will in accordance with law. It appears that the learned Tribunal, in the alternative, has considered the decision of Division Bench on assumption that even if the Will is proved in that case also transfer in favour of the petitioner on the basis of such a Will is hit by Section 43 of the Bombay Tenancy and Agricultural Lands Act. Under the circumstance, merely because the Special Leave Petition is pending against the decision of the Division Bench and in the facts and circumstances of the case as narrated hereinabove more particularly when the petitioner has failed to prove the Will in accordance with law, which he is required to prove as observed by learned Single Judge in Special Civil Application No. 9641 of 1993, the present petition is not required to be admitted solely on the aforesaid ground.” 10. The ratio laid down in all the aforesaid judgments are binding to this Court but considering the fact that all these judgments are rendered prior to the judgment given by this Hon’ble Court while considering the issue of limitation for the period of Covid-19 Pandemic and therefore, considering the peculiar facts and circumstances of the present case, those judgments are not squarely applicable. 11. At this stage, it is apt to consider the provisions of Order XXII Rules 3 and 9 of the C.P.C. which read as under: “3. Procedure in case of death of one of several plaintiffs or of sole plaintiff: (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. 9. 9. Effect of abatement or dismissal: (1) Where a suit abates or is dimissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877) shall apply to applications under sub-rule (2). Explanation - Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.” 12. In the facts and circumstances of the present case, I found that on the basis of the Will, the petitioner can be considered as a legal representative of the deceased-Rajabhai Bhojabhai Mer. There is no dispute looking to the Section 2(11) of the C.P.C. and also considering the fact that it has remained undisputed that the original-plaintiff - Rajabhai Bhojabhai Mer has expired and thereafter, the application is preferred. It also transpires that the provisions of Order XXII Rule 3, more particularly, Order XXII Rule 3(2) of the C.P.C. speaks about the procedure and period. However, considering the judgments of the Hon’ble Apex Court regarding the Covid-19 Pandemic, whereby, the delay is required to be condoned. The period which is required to be considered for condoning the delay, is considered by the trial Court from 15.03.2020 till 28.02.2022, which shall be required to be excluded for the purpose of limitation and therefore, the provisions of Order XXII Rule 3 of the C.P.C. in the facts of the present case will not come in way of the present petitioner and the suit cannot be considered as abated. Therefore, considering all these aspects, I am of the opinion that the trial Court has committed gross error in law by not allowing the application which was filed and has wrongly dismissed the application below Exh.23 vide order dated 13.02.2023 in Special Civil Suit No. 84 of 2019. In the peculiar facts and circumstances of the present case, the present petitioner must be considered as a legal representative and therefore, the impugned order is required to be quashed and set aside. 13. The impugned order dated 13.02.2023 passed below Exh.23 in Special Civil Suit No. 84 of 2019 by the learned 6th Additional Senior Civil Judge, Jamnagar, is hereby quashed and set aside. Accordingly, the present petition is allowed. Rule is made absolute to the aforesaid extent. 14. The trial Court shall proceed after impleading the present petitioner as a party in the suit proceedings. The trial Court shall proceed in accordance with law and shall decide the proceedings of the suit on its own merits. 15. With the aforesaid observations and directions, the present petition stands disposed of.