Dismissed

Bharatbhai Bhikhabhai Prajapati v. Bhanubhai Hamirbhai Bharwad

Gujarat HC3 Sept 2019LPA/1332/2019

Case brief

AI extract

What is this about?

Letters Patent Appeal against an order allowing joinder of parties who hold an agreement to sell the subject land. The High Court held that since the writ petition relies on interest over the land subject to pending adjudication, the interested party cannot be denied representation. The appeal was dismissed.

What did the court decide?

The Letters Patent Appeal was dismissed; the joinder order of the learned Single Judge was affirmed; the related Civil Application was disposed of.

Bharatbhai Bhikhabhai Prajapati Vs Bhanubhai Hamirbhai… — Property and Title | Gujarat HC (2019)

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C/LPA/1332/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 1332 of 2019

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In R/SPECIAL CIVIL APPLICATION NO. 11320 of 2016 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS PATENT APPEAL NO. 1332 of 2019

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================================================================ BHARATBHAI BHIKHABHAI PRAJAPATI

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Versus BHANUBHAI HAMIRBHAI BHARWAD

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================================================================ Appearance:

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MR ZALAK PIPALIYA WITH MR. JAVED S QURESHI(6999) for the Appellant(s) No. 1,2,3,4,5,6,7

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for the Respondent(s) No. 1,2,3,4,5,6,7,8,9

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================================================================

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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE DR.JUSTICE A. P. THAKER

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Date : 03/09/2019 ORAL ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)

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The present Letters Patent Appeal is filed under Clause 15 of the Letters Patent Act assailing the order dated 22.04.2019 passed by the learned Single Judge in Civil Application No.1 of 2018 for joining party – respondents in Special Civil Application No.11320 of 2016.

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The facts in brief, as could be gathered from the appeal, deserve to be set out as under:-

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2.1 The present appellants are the original petitioners have preferred the petition with the following prayers:-

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(A) Your Lordships may be pleased admit and allow this petition;

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Page 1 of 5

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C/LPA/1332/2019 ORDER

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(B) Your Lordships may be pleased issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order direction, by setting aside the order dated 26.5.2016 passed by respondent No.3 in Gujarat Land Revenue Rules, 1972 / MVV – HKP – AND – 151 -2015 the order dated 15.6.2015 passed by Respondent No.3 in Gujarat Land Revenue Code / RTS / SOUMUTO / REVISION No.34 of 2015 and further be restore the mutation entry no. 44794 in the revenue records;

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(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, implementation and operation of the order dated 26.5.2016 passed by Respondent No.2 in Gujarat Land Revenue Rules / MVV – HKP – AND – 150 -2015 and the order dated 15.6.2015 passed by Respondent No.3 in Gujarat Land Revenue Rules / RTS / SOUMUTO / REVISION No.34 of 2015;

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(D) Be pleased to grant any other relief which deems fit and proper in the interest of justice;

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2.2 Thus, what is essential under challenge is suo-motu proceedings in respect of the subject land which, in fact, has been claimed proposed to be sold by the original owner to the respondents and original applicants, who approached the Court for joining party by way of Civil Application being Civil Application No.1 of 2018. The said application contains with the following prayers.

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(A) YOUR LORDSHIPS may be pleased to allow this application, in the interest of justice;

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(B) YOUR LORDSHIPS may be pleased to permit the applicants to be joined as party respondent no.8 and 9 in Special Civil Application No. 11320 of 2016, in the interest of justice;

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(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon’ble Court in the interest of Justice;

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2.3 The learned Single Judge has passed the following order in

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Page 2 of 5

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C/LPA/1332/2019 ORDER

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Civil Application No.1 of 2018.

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1. Rule. Learned advocates appearing for the respective respondents waive service of rule on behalf of respective respondents.

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2. By way of the present application, the applicants have prayed to permit them to be joined as party – respondent Nos.8 and 9 in the main Special Civil Application No.11320 of 2016.

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3. I have heard learned advocates appearing for the respective parties and perused the contents of the application. Hence, the present application stands allowed. The applicants herein are permitted to be joined as party – respondent Nos.8 and 9 in the main Special Civil Application No. 11320 of 2016. Necessary amendment in the case title of the main petition be made accordingly. Rule is made absolute.

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Learned counsel appearing for the appellants has submitted that on the basis of the provisions of Section 54 of the Transfer of Properties Act and following the decisions of the Supreme Court in the case of Chief Controlling Revenue Authority, Gujarat Vs. Mahesh Fakirchand Mehta and Anr ., reported in GLR 1977 Vol.18 83 and in the case of Suraj Lamp and Industries Private Limited Vs. State of Haryana and another , reported in (2012) 1 SCC 656 , merely on the strength of being party to the agreement to sell would not create any right or interest in the property, in any manner, so as to join as party as the petitioners have no exclusive right to choose to be party respondents and as such, there is no prayer against the said applicants, therefore, the application ought not to be allowed.

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3.1 Learned counsel for the appellants has further submitted that the decisions cited at the Bar would clearly indicate that the scope of interest and right in the property merely based upon the agreement to sell, is absolutely limited and when the applicants

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Page 3 of 5

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C/LPA/1332/2019 ORDER

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have, in fact, chosen to challenge the proceedings before the Mamlatdar in respect of the revenue entries and when the Mamlatdar discarded the objections raised by the applicants and when the order was not challenged, such party could not have been permitted to join as party respondents.

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3.2 Learned counsel for the appellants has further submitted that the Civil Suit which is filed by the applicants is pending and there is no interim order granted in their favour. In that view of the matter, the order of the learned Single Judge ought not to be joined party respondents in the present proceedings.

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We have heard learned advocate for the appellants. Perused the orders passed in Civil Application as well as original petition. The Civil Application contains the relevant fact which needs to be set out as under:-

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2.3 Thereafter, the legal heirs of deceased Dahyabhai agreed to sell the said land to the present applicants by executing agreement to sell dated 19.7.2008 and one Consent Receipt dated 20.7.2008. Further, the seller also obtained part of the consideration at that point of time. Further, subsequently also, the applicants have paid very huge amount to the seller. Further, the agreement is explicitly clear that the land owners / sellers were required to obtain necessary permission under the law as required and stated in the agreement itself.

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2.4 That thereafter, huge amount towards the sale consideration was also paid to the above named original land owners. Further, since then, all the rights of possession qua the land in question are also given in favour of present applicants by above land owners, as stated in the above agreement.

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2.5 However, thereafter, the opponent nos.1 to 7 – original petitioners claimed to have purchased the said land under some agreement to sell dated 15.9.2008 and sale deed dated 16.11.2009 from three sons of deceased Dahyabhai i.e. opponent

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Page 4 of 5

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C/LPA/1332/2019 ORDER

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nos. 12 to 14 herein. In pursuance thereto, the opponent nos. 1 to 7 applied for mutation of their names in the revenue record in the year 2014 before the concerned revenue authority. At that point of time, the applicants herein came to know about the disputed agreement to sell / sale deed. Therefore, the applicant no.2 filed objections before the concerned revenue authority i.e. Mamlatdar, Anand. Further, the Mamlatdar, Anand heard and considered the objections of the present applicant no.2 in detail and passed the order which was ultimately set aside by the Ld. Collector, Anand, as it appears from the record.

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The subject matter of the petition i.e. the land in question is the subject matter of the suit being Civil Suit No.111 of 2017. In that view of the matter, when there cannot be any dispute qua the provisions of Section 54 of the Transfer of Properties Act and the decisions rendered thereupon regarding the scope of the agreement to sell. The writ petition is on the basis of the interest over the land, and, when adjudication is undertaken, the interested party could not have been denied the representation. In that view of the matter, the Court did not elaborate other reasons suffice it to say that this Court does not call for any interference. The appeal fails and it is accordingly dismissed.

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Since the main appeal is disposed of, the Civil Application shall not survive. Hence, the Civil Application stands disposed of accordingly.

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(S.R.BRAHMBHATT, J)

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(A. P. THAKER, J)

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V.R. PANCHAL

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Bharatbhai Bhikhabhai Prajapati v. Bhanubhai Hamirbhai Bharwad

Case brief

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Bharatbhai Bhikhabhai Prajapati v. Bhanubhai Hamirbhai Bharwad

Case brief

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