Saberaben Alibhen Jafai vs State Of Gujarat

Aravind Kumar, CJ

[1] The order dated 12.10.2022 passed in Civil Application No.1 of 2020 filed in Special Civil Application No.2760 of 2000 has been challenged in this intra court appeal. The appellants herein, claiming to be the legal representatives of one Mr. Alibin Saiyedali who was the second respondent in Special Civil Application No.2760 of 2000, filed an interlocutory application without specifying the provision of law to be joined as party respondent Nos. 8 and 9 in Special Civil Application No.2760 of 2000. The said application having been dismissed by order dated 12.10.2022, is challenged in this intra court appeal.

[2] Appellants claiming to be the predecessor in title and asserting right over the land bearing Survey No.64 admeasuring 43 acres and 19 gunthas situated at Targhadi village, Rajkot District alongwith other writ applicants sought for being impleaded before the learned Single Judge in Special Civil Application No.2760 of 2000, which Special Civil Application had been filed by the State challenging the order dated 01.07.1997 passed by the Gujarat Revenue Tribunal in Appeal No.15/ 1995 whereunder the order passed by the Collector dated 09.04.1995 for entering the name of the Government in the revenue records came to be set aside and thereby confirming the order of the Deputy Collector, Morbi in Misc. Appeal No. 28/1989 which had confirmed the order passed by the Mamlatdar in Case No.2/70-84 by order dated 20.02.1985. The application filed by the appellants for getting impleaded was opposed by the power of attorney holder Mr. Purshottam Keshavbhai Savaliya and Mr. Dhamjibhai Veljibhai Nasit contending inter alia that they had no right over the property and the right claimed by them as power of attorney holders is based on a forged document and as such any order that would be passed in the Special Civil Application No.2760 of 2000 would affect the rights of the appellants and as such contending that they are necessary and proper parties sought for being impleaded. It was also contended that appellants being the legal representatives of Mr. Alibin Saiyedali the second respondent in Special Civil Application No.2760 of 2000 should be permitted to be impleaded as legal representatives of deceased Mr. Alibin Saiyedali since they are his wife and son and as such they are entitled to represent his estate and learned Single Judge ought to have allowed the said application.

[3] We have heard the arguments of Mr. S. P. Majmudar, learned counsel appearing for the appellants and Mr. K. M. Antani, learned Assistant Government Pleader appearing for State. Perused the records.

[4] It is the contention of Mr. S. P. Majmudar, learned counsel appearing for the appellants that learned Single Judge had erred in not considering true import of sub-rule (4) of Order 22 which enables the legal representatives of the deceased to be brought on record and without going into the contentions regarding the intra party rights, learned Single Judge ought to have permitted the appellants to be brought on record inasmuch as they represent the estate of the deceased and as such application ought to have been allowed either under Order 22 Rule (4) or under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 since they are necessary and proper parties to the proceedings. Hence, he prays for appeal being allowed. In support of his submission, he has relied upon the judgment of the Hon'ble Apex Court in the case of Pankajbhai Rameshbhai Zalavadiya versus Jethabhai Kalabhai Zalavadiya reported in (2017) 9 SCC 700.

[5] Having heard the learned counsel appearing for the appellants and on perusal of the records, we notice that father of the second appellant and husband of the first appellant Mr. Alibin Saiyedali had been arrayed as the second respondent in the proceedings before the learned single Judge initiated by the State by filing Special Civil Application No.2760 of 2000. Along with him his other brothers and sisters had also been arrayed as parties namely respondents contending they are all the legal heirs of one Mr. Saiyedbin Abdulla, who claimed to be the successor in interest of the property bearing Survey No.43, namely, the subject property. It has been the case of the power of attorney holder Mr. Purshottam Keshavbhai Savaliya and Mr. Dhamjibhai Veljibhai Nasit that all the respondents including the father of the appellants herein had delivered possession of the said property and had also executed on 01.08.1999 the possessory receipt and power of attorney of even date which is an agency coupled with interest and as such they were the person in possession of subject property and entitled to prosecute the proceeding as initiated by the State against them. It is no doubt true under the definition of legal representatives as defined under sub-section (11) of section 2 of the Civil Procedure Code even intermeddlers are considered as legal representatives and not as legal heirs. The appellants herein are claiming to be the legal heirs, namely, the first appellant is claiming to be the wife and second appellant is claiming to be the son of late Mr. Alibin Saiyedali the second respondent in Special Civil Application No.2760 of 2000. During the life time of Mr. Alibin Saiyedali he is said to have executed the two documents alongwith others as aforestated on 01.08.1999 and it was never questioned by them. Be that as it may. The said Mr. Alibin Saiyedali expired on 20.02.1997 as stated by Mr. S. P. Majmudar, learned counsel for appellants. Thus, the claim of the appellants to file an application to be brought on record as the legal representatives of the deceased, even if any, as on the date of filing of the present application had stood abated, inasmuch as they had waived their right or had not questioned the act of deceased Mr. Alibin Saiyedali who had executed documents on 01.08.1999 and delivered possession of the property. There was no application filed for setting aside the abatement even if any. Be that as it may. While considering an application for bringing the legal representatives on record, the scope of scrutiny of the said application would not take within its sweep of adjudicating intra party rights or rival claims even if any. It is for the parties to get it resolved in an appropriate proceedings before Civil Court. Knowing fully well that their father had been arrayed as a respondent, namely, second respondent in Special Civil Application No.2760 of 2000 which proceedings had been initiated by the State questioning the order of the Gujarat Revenue Appellate Tribunal, yet they did not chose to file an application under Order 1 Rule 10(2) for getting themselves impleaded even if the appellants have any semblance of right over the subject property. However, all of a sudden and out of blue an interlocutory application came to be filed after 13 years from the date of death i.e. on 05.02.2020. Perusal of the averments made in the application are not only vague but also bereft of material particulars. If at all appellants have any claim over the subject property against the claim of agreement holder and appellants are claiming to be the legal heirs of Mr. Alibin @ Alidun Saiyedali who expired on 20.02.1997, it would be open for them to establish their right in the Civil Court and it is this precise observation which has been made by the learned Single Judge vide paragraph 9 of the impugned order. In other words, no opinion has been expressed with regard to the right of the appellants over the subject property as against the claim made by the power of attorney holders. In other words, both either of the parties would be at liberty to workout their rights in appropriate proceedings and without expressing any opinion on the merits of the rival claims, this appeal stands dismissed.

[6] Consequently Civil Application No.1 of 2022 does not survive for consideration and same stands dismissed.