State of Gujarat vs Bava Karshan Patel

J.C. Upadhyaya, J.—Heard Ms. Shachi Mathur, Ld. AGP for the applicant - original Appellant and Mr. YN Ravani, Ld. Advocate for the opponent - original Respondent.

The instant application is filed by the applicant for following reliefs prayed for in para. 5:

[A] Your Lordships may be pleased to clarify that the common judgment and order dated 1/11/2001 passed by this Hon''ble Court [Coram: Hon''ble Mr. Justice R.P. Dholakia], the opponent is entitled to get the possession of the land admeasuring 0 acre and 4 gunthas only inasmuch as the opponent having disposed of the land alleged to be of his ownership, i.e. admeasuring 1 acre and 4 gunthas, out of 1 acre 8 gunthas;

[B] That delay, if any, in filing the present application may kindly be condoned in the larger interest of justice.

The opponent filed Special Civil Suit No. 8/1972 in the Court of Ld. Civil Judge [S.D.], Rajkot, seeking reliefs inter-alia regarding declaration of his ownership of the land survey No. 345 situated in Rajkot admeasuring 2 acres and 13 gunthas. In the suit, the opponent original Plaintiff also prayed for certain reliefs declaring decision dated 9/11/1966 of the then Collector, Rajkot and the decisions taken by the higher revenue authorities including the Gujarat Revenue Tribunal as void. The Civil Court, vide judgment and decree dated 31/3/1980 allowed and decreed the suit and declared that the suit land admeasuring 2 acre and 13 gunthas of survey No. 345 was of the ownership of the opponent - Plaintiff. The impugned order of Gujarat Revenue Tribunal and orders of other revenue authorities were declared illegal and not binding upon the opponent - Plaintiff.

Being aggrieved and dissatisfied with the impugned judgment and decree rendered by the Civil Court, the applicant original Appellant preferred First Appeal No. 491/1981. This Court, vide judgment and order dated 1/11/2001 partly allowed the appeal and a declaration in favour of the opponent - Plaintiff was issued to the effect that the Plaintiff was the owner of 1 acre and 8 gunthas of Vokla bank land and Vokla land was held to be automatically vested in the Government. It further transpires that after this Court delivered the aforesaid judgment and order, the opponent - original Plaintiff preferred contempt petition bearing Misc. Civil Application No. 2582/2005 in First Appeal No. 491/1981, wherein the order was passed on 23/6/2008 and upon declaration made on behalf of the applicant - Appellant - State that subsequent disputed order passed by the Collector, Rajkot, shall stand withdrawn, the said application was, therefore, came to be disposed of. However, upon request made on behalf of the applicant - Appellant - State, liberty was reserved to move appropriate application in the proceedings of First Appeal No. 491/1981 as available in law and it was clarified that if such application is made, the rights and contentions of both the sides in the aforesaid proceedings shall remain open and shall not get prejudiced in view of the order passed in the aforesaid contempt petition. It seems that said order came to be passed on 23/6/2008 and thereafter, the instant application came to be filed on 22/4/2009.

4.1. In the application, it seems that the main thrust is given to the fact regarding T.P. Scheme No. 5 and certain developments pursuant to the said scheme. It is stated that as per the said scheme, the land was divided into four final plots, namely final plot Nos. 200, 201, 202 and 203. As per the averments made in the application, final plot Nos. 202 and 203 were allotted to the purchaser i.e. Mangaldas Patwari and his successor, who had purchased the land admeasuring 1 acre and 4 gunthas. It further transpires that pursuant to the judgment and order rendered in the aforesaid First Appeal, Town Planning Department made certain inquiry from the office of the Deputy Collector, Rajkot and it was revealed that the disputed land was running in the names of the Government of Gujarat through Collector, Rajkot and Bavabhai Karsanbhai, the original Plaintiff - opponent herein. The applicant - Appellant felt that in fact the opponent - Plaintiff is entitled to possession of only 04 gunthas of land and not the area of the land as directed in the judgment and order rendered by this Court in the appeal. In the result, the clarification was sought by preferring this application.

I have heard Ld. Counsel representing both the sides at length and I have perused the relevant papers annexed with this application.

The first and foremost contention which requires to be considered is that in connection with this dispute, the opponent - Plaintiff filed suit before the Civil Court in the year 1981. The suit, in toto, came to be allowed and decreed in favour of the opponent - Plaintiff by judgment and decree dated 31/3/1980. As stated above, the said judgment and decree rendered by the Civil Court came to be challenged before this Court and this Court, examining all the material aspects of the matter and giving full opportunity of being heard to both the sides and in fact considering the submissions advanced on behalf of both the sides, partly allowed the appeal by judgment and order dated 1/11/2001 and observed that the decree passed by the Civil Court below, to some extent was required to be confirmed and to some extent was required to be modified. This Court, therefore, observed that 1 acre and 16 gunthas of Vokla bank land was held to be part and parcel of survey No. 345 and was of the ownership of the opponent - Plaintiff and decree to that effect was required to be confirmed in favour of the opponent - Plaintiff and against the applicant - Appellant. It was further observed that as far as 37 gunthas of land were concerned, admittedly they are Vokla land for rain water stream hence, the same are kept as it is and where it is and the same was vested in the Government. It was further observed that since the opponent - Plaintiff had sold 20 gunthas of land to Ravishankar from survey No. 345, out of which, admittedly 8 gunthas of land and Vokla land of survey No. 345 is admeasuring 37 gunthas and, therefore, 8 gunthas of Vokla land which has been sold to Ravishankar by the opponent - Plaintiff without any title and, therefore, the opponent - Plaintiff was required to give account to that effect to the State Government and accordingly, deducting the aforesaid 8 gunthas of land from 1 acre and 16 gunthas of land, this Court ultimately came to the conclusion that the opponent - Plaintiff was held to be owner of 1 acre and 8 gunthas of Vokla bank land. The instant application, therefore, is preferred describing the same as clarification of the order passed in the appeal on 1/11/2001 and the same was, as stated above, filed in the year 2009, however, taking recourse to the earlier order passed in Misc. Civil Application for Contempt No. 2582/2005 dated 23/6/2008. When such is the situation, it appears that the instant application is filed almost after 8 years from the date of the pronouncement of judgment and order in the aforementioned appeal and after about one year from the date of order passed in the contempt petition.

Mr. Ravani, Ld. Advocate for the opponent-original Plaintiff submitted that considering the provisions contained in the CPC [for short ''C.P.C.''], there is no such provision by virtue of which such clarification application lies. It further transpires that perusing Section 152 of the C.P.C., in case of clerical or arithmetic mistake in judgment or in decree or in order, such mistake is permitted to be corrected. Nothing transpires that the instant application is filed u/s 152 of the CPC Then considering the provisions contained under Order 47 of the Code of Civil Procedure, pertaining to the review, it clearly transpires that the review petition lies only under a limited aspect. The bare perusal of this application reveals that it is not the allegation of the applicant-Appellant that any important material or any evidence, which after the exercise of due diligence, was not produced either in the suit or in the appeal. Nothing is pointed out that there was any mistake or error, apparent on the face of record, committed by this Court while disposing of the main First Appeal. Under such circumstances, as stated above, neither the instant application can be said to have been filed u/s 152 of the C.P.C., nor it can be termed as a review petition.

Despite all such technicalities attached to this application, this Court called upon the Ld. Counsel representing the applicant-Appellant to show relevant material so that even on merits this Court can examine the grievance of the applicant-Appellant. It was submitted that the opponent-Plaintiff entered into certain sale transaction in the year 1955 and considering the area of the land comprised in those sale transactions as well as if the effect of the judgment and order rendered by this Court in the appeal is given by allotting 1 acre and 8 gunthas of land to the opponent-Plaintiff, nothing would remain in the hands of the applicant. My attention was drawn to Form-F prepared in the year 1996 produced at Annexure-R-1 [page 124]. Perusing the said Form, it transpires that in connection with entries for Nos. 200 & 201, in column No. 2 regarding the names of the owners, the names are referred to as the State Government through Collector and the present opponent-Plaintiff. In the last column, at item No. 4, it is clarified that the decision regarding ownership shall be subject to final outcome of the appeal pending before this Court. As stated above, the dispute was already resolved thereafter by this Court vide judgment and order dated 1/11/2001 rendered in the aforesaid appeal i.e. First Appeal No. 491/1981. Moreover, in para. 2.16 in the application, it has been stated that the land admeasuring 1 acre and 4 gunthas in final plot Nos. 202 and 203 was allotted to Mangaldas Patwari and his successor. However, considering the copy of judgment rendered by the Civil Court dated 31/3/1980 and especially para. 23 therein, it transpires that 36 gunthas of land was sold to Mangalwad Patwari. The same facts have been considered by this Court in judgment and order dated 1/11/2001 rendered in the aforementioned appeal if para. 6 in said judgment is considered. Under such circumstances, the land admeasuring 36 gunthas came to be sold to Mangaldas Patwari. When such is the situation, nothing transpires that any clarification is required in this matter and that too after about 8 years from the date of pronouncement of judgment and order in the aforementioned appeal. In the judgment and order dated 1/11/2001, as stated above, this Court elaborately dealt with and discussed the contentions raised on behalf of the applicant. It further transpires that this Court took into consideration the earlier sale transactions which are even now sought to be relied upon on behalf of the applicant - Appellant. It is further pertinent to note that if the applicant - Appellant felt aggrieved and dissatisfied with the judgment and order dated 1/11/2001 passed in First Appeal No. 491/1981, the applicant - Appellant could have challenged the said judgment before higher forum, but admittedly the judgment and order have not been challenged by the applicant - Appellant before the higher forum and, therefore, said judgment and order have attained finality. Furthermore, the nature of this application is such that if it is allowed, it would amount to reopening the original dispute which occurred about 40 years back and which has been finally resolved since 10 years back.

In the above view of the matter, even on merits, this Court does not find any ground to interfere with the judgment and order dated 1/11/2001 rendered in the aforementioned appeal in the form of clarification. The application is, therefore, devoid of any merits not only on technical aspect as discussed above, but even on merits.

For the foregoing reasons, the application is dismissed. Rule is discharged. There shall be no order as to costs.