Gokalbhai Thakarshibhai Died Through Lh vs State Of Gujarat Through District Collector Morbi

Bhargav D. Karia, J

Heard learned advocate Mr. Jenil M. Shah for the applicants, learned advocate Mr. Rutvij S.Oza for respondent no.3 and learned Assistant Government Pleader Mr.Kurven Desai for the respondent-State on advance copy.

This application is filed seeking leave to appeal to challenge the judgment and award dated 27.10.2017 passed by the Principal Senior Civil Judge, Morbi in Land Reference Case No.513 of 2004.

It is the case of the applicants that late father of the applicant Shri Laljibhai Thakarshibhai had preferred the Land Reference, however he passed away on 12.08.2009 during the pendency of the Reference and the legal heirs-applicants did not join as necessary and proper party being legal heirs of late Shri Laljibhai Thakarshibhai before the Reference Court. It was pointed out that by judgment and award dated 27.10.2017 the Land Reference was rejected and therefore, the applicants being the legal heirs of late Shri Laljibhai Thakarshibhai would like to challenge such rejection of the Land Reference by preferring the First Appeal. It was therefore, prayed that the applicants be granted leave to appeal challenging the rejection of the Land Reference.

Learned advocate Mr. Jenil Shah for the applicants fairly stated that the Division Bench of this Court in case of Deputy Collector and Land Acquisition Officer v. Patel Parsottambhai Pragjibhai vide judgment dated August 07, 2019 passed in Civil Application No.305 of 2019 and allied matters has held that in case where the claimant has expired during the pendency of the Land Reference and without joining legal heirs, if any award is passed, then the only remedy available to the legal heirs is to apply before the concerned Court to get the judgment and award amended by making an application to join them as legal heirs. It was submitted that after the said order was pronounced, the Apex Court in case of Kavarampeta Venkataiah and others v. Gayatri Educational Society and others reported in 2021 SCC Online SC 113 has held that it is the option of the legal heirs either to consider the judgment and award passed against a dead person as nullity or to contest the same on merits. It was submitted that in the aforesaid decision, reliance was placed on the decision in case of N. Jayaram Reddey v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool reported in (1979) 3 SCC 578 wherein it is held that if an order was passed against a dead person, the representative of such deceased person could either treat the order or decree to be nullity or chose to challenge the order on merits. It was therefore, submitted by learned advocate Mr. Shah that the applicants have chosen to challenge the award on merits and therefore, this application seeking leave to appeal may be allowed permitting the appellants to prefer the First Appeal challenging the impugned judgment and award.

On the other hand, learned advocate Mr. Rutvij Oza appearing for the respondent no.3 submitted that as per the decision of the Division Bench in case of Deputy Collector and Land Acquisition Officer v. Patel Parsottambhai Pragjibhai(supra), the applicants are required to approach the Reference Court to get the impugned judgment and award amended and thereafter prefer an appeal and therefore, this application seeking leave to appeal is not maintainable in view of the said decision of Division Bench.

Having heard the learned advocates for the respective parties and after considering the decision of Division Bench of this Court in case of Deputy Collector and Land Acquisition Officer v. Patel Parsottambhai Pragjibhai (supra) and Hon’ble Supreme Court in case of Kavarampeta Venkataiah and others v. Gayatri Educational Society and others (supra), I am of the opinion that the decision of Supreme Court would prevail in the facts of the case to the effect that the applicants who are legal heirs of late claimant have the option to treat the impugned judgment and award as nullity or chose to challenge the order on merits. The applicants have rightly not opted for the option to treat the judgment and award as nullity as the Reference was dismissed and therefore, only option for the applicants is to challenge the same on merits.

Therefore, in the facts of the case the only option being to challenge the dismissal of the Reference on merits, the applicants are entitled to challenge the same by applying for leave to appeal in view of provisions of section 151 read with section 96 of the Code of Civil Procedure, 1908 and the decision of Division Bench in case of Deputy Collector and Land Acquisition Officer v. Patel Parsottambhai Pragjibhai (supra) would not be applicable in the facts of the case in view of the following observations of the Hon’ble Supreme Court in case of Kavarampeta Venkataiah and others v. Gayatri Educational Society and others (supra) :

“9. Reliance was placed on the decision of this Court in N. Jayaram Reddy & Another v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, (1979) 3 SCC 578 to submit that if an order was passed against a dead person, the representatives of such deceased person could either treat the order or decree to be a nullity or choose to challenge the order on merits. The relevant observations of this Court in said decision were:-

“6. The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while the law treats such a decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be mollified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits.

He may do so either because of his faith in the strength of his case on the merits, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of cross-appeals, he may have the impression that bringing the legal representative of the deceased respondent on record in an appeal by a co-appellant will enure for the benefit of or be sufficient for purposes of the cross- appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is therefore a matter at the discretion of the legal representative of the deceased respondent and there is no justification for the argument to the contrary. It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone.””

Considering the above dictum of law, this application is allowed. The applicants are permitted to prefer an appeal challenging the impugned judgment and award passed by the Reference Court.

Civil Application accordingly stands disposed of.