Gujarat High Court
Loyola Education Society vs Chandulal Narottam Surti on 19 February, 2026
NEUTRAL CITATION
C/SCA/10476/2008 ORDER DATED: 19/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10476 of 2008
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 10476 of 2008
With
R/SPECIAL CIVIL APPLICATION NO. 10477 of 2008
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 10477 of 2008
With
R/SPECIAL CIVIL APPLICATION NO. 10478 of 2008
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 10478 of 2008
With
R/SPECIAL CIVIL APPLICATION NO. 10479 of 2008
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 10479 of 2008
=======================================================
LOYOLA EDUCATION SOCIETY
Versus
CHANDULAL NAROTTAM SURTI & ORS.
=======================================================
Appearance:
MR PERCY KAVINA, Sr. Adv. with MS AISHWARI R
SHAH(17307) for the Petitioner(s) No. 1
MR PR NANAVATI(508) for the Respondent(s) No. 1
MS KRUTI M SHAH(2428) for the Respondent(s) No. 2
MS DILBUR CONTRACTOR(6388) for the Respondent(s) No.
1.1,1.10,1.11,1.12,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 19/02/2026
ORAL ORDER
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1. Since all these matters are connected with each
other and the disputes involved in all these
matters are related to same land, all these
petitions are heard together and are being decided
by this common order.
2. By filing Special Civil Application No.10476/2008
under Articles 14, 19, 226 and 227 of the
Constitution of India as well as under the
provision of the Bombay Tenancy & Agricultural
Lands Act, 1948 and under the provision of the
Bombay Public Trust Act, 1950, the petitioner has
prayed for quashing and setting aside the order
dated 17.06.2008 passed by the Hon’ble Gujarat
Revenue Tribunal, Ahmedabad in Revision
Application No.TEN.AS 5 of 2003 and thereby prayed
for restoration of the order dated 02.06.1984
passed by the learned Joint Charity Commissioner,
Vadodara granting permission under Section 36 of
the Bombay Public Trust Act, 1950.
3. By filing Special Civil Application No.10477/2008
under Articles 14, 19, 226 and 227 of the
Constitution of India as well as under the
provision of the Bombay Tenancy & Agricultural
Lands Act, 1948, the petitioner has prayed for
quashing and setting aside the order dated
17.06.2008 passed by the Hon’ble Gujarat Revenue
Tribunal, Ahmedabad in Revision Application
No.TEN.BS 129 of 2003 and thereby prayed for
restoration of the order dated 09.04.1984 passed
by the learned Deputy Collector, Olpad in Tenancy
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Case No.620 of 1984.
4. By filing Special Civil Application No.10478/2008
under Articles 14, 19, 226 and 227 of the
Constitution of India as well as under the
provision of the Bombay Tenancy & Agricultural
Lands Act, 1948, the petitioner has prayed for
quashing and setting aside the order dated
17.06.2008 passed by the Hon’ble Gujarat Revenue
Tribunal, Ahmedabad in Revision Application
No.TEN.BS 37 of 2002; the order dated 05.02.2002
passed by the learned Deputy Collector, Olpad in
Tenancy Appeal No.22 of 2001 and the order dated
30.07.2001 passed by the learned Mamlatdar & ALT,
Choryashi in Case No.70(b) – 9 of 1999.
5. By filing Special Civil Application No.10479/2008
under Articles 14, 19, 226 and 227 of the
Constitution of India as well as under the
provision of the Bombay Tenancy & Agricultural
Lands Act, 1948 and under the provision of the
Bombay Public Trust Act, 1950, the petitioner has
prayed for quashing and setting aside the order
dated 17.06.2008 passed by the Hon’ble Gujarat
Revenue Tribunal, Ahmedabad in Revision
Application No.TEN.AS 10 of 2003, whereby the said
Revision Application preferred by the respondent
no.1 has been allowed and the order dated
24.07.2003 passed by the learned Deputy Collector,
Olpad under Section 84 of the Bombay Tenancy Act,
1948 has been quashed and set aside.
6. The brief facts leading to filing of all these
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petitions are as under,
6.1 The dispute pertains to land bearing Survey
No.48 admeasuring 10 Acres 26 Guntha, land
bearing Survey No.49A pk. admeasuring 2 Acre
25 Guntha, land bearing Survey No.48 pk.
admeasuring 3 Acre 22 Guntha and land bearing
Survey No.53 admeasuring 1 Acre 38 Guntha
situated in the sim of Village : Jankhvav,
Taluka : Mangrol, District : Surat
(hereinafter referred to as “the land in
question” for short).
6.2 The land in question was originally to the
respondent no.2 – Shantiniketan Trust.
However as it was not possible for the
respondent no.2 – Trust to maintain and
impart education for want of funds and other
financial difficulties, a decision was taken
to give the said land to the petitioner –
society by way of gift and accordingly,
Resolution came to be passed.
6.3 The respondent no.1 herein filed Tenancy Case
No.997 of 1979 before the learned Mamlatdar,
Mangrol under Section 70 of the Tenancy Act
inter alia praying for declaration to be
declared him as tenant so far as the land
bearing Survey Nos.48, 49 pk. & 48 pk. are
concerned, wherein by an order dated
13.10.1980, the learned Mamlatdar declared
him as tenant.
6.4 However the petitioner being Society sought
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permission from the learned Charity
Commissioner for the transfer of the land in
question and accordingly by an order dated
02.06.1984, the learned Charity Commissioner
granted permission under Section 36 of the
Bombay Public Trust Act, 1950 in favour of
the petitioner for the transfer of the land
in question by way of gift.
6.5 Thereafter, the petitioner had also submitted
an application before the learned Deputy
Collector, Olpad under Section 63 of the
Tenancy Act seeking permission to transfer
the land in question in their favour and
pursuant to which, by an order dated
09.04.1984 passed in Tenancy Case
No.620/1984, the learned Deputy Collector
granted such permission for the transfer of
the land in question by way of gift.
6.6 On the strength of the above orders, Entry
No.2713 came to be mutated in the revenue
record on 15.01.1985. After transferring the
land in question in favour of the petitioner
and taking over possession thereof, NA
permission was sought for by the petitioner
and accordingly by an order dated 24.09.1985,
the learned Collector granted NA permission.
6.7 In the meantime, the respondent no.1
submitted an application under Section 70(b)
of the Tenancy Act before the learned
Mamlatdar & ALT inter alia praying for
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declaration that he should be declared as
tenant and pursuant thereto, the said case
was registered as Case No.997 of 1979. It is
pertinent to note that twice the matter was
remanded and ultimately by an order dated
30.07.2001, the learned Mamlatdar & ALT
declared the respondent no.1 as tenant.
6.8 Against the aforesaid order, the petitioner
herein preferred Appeal No.22 of 2001 before
the learned Deputy Collector, Olpad, who by
an order dated 25.02.2002, confirmed the
order of the learned Mamlatdar & ALT.
6.9 The respondent no.1 had moved an application
before the learned Deputy Collector, Olpad,
however, the said application came to be
rejected by the learned Deputy Collector,
Olpad by an order dated 24.07.2003.
6.10 Against the aforesaid order dated 25.02.2002,
the petitioner preferred Revision Application
No.BS 37 of 2002 before the Hon’ble Gujarat
Revenue Tribunal.
6.11 Against the order dated 02.06.1984, the
respondent no.1 herein preferred Revision
Application No.AS 5 of 2003 before the
Hon’ble Gujarat Revenue Tribunal.
6.12 Against the order dated 09.04.1984 passed
under Section 63 of the Tenancy Act, the
respondent no.1 herein preferred Revision
Application No.BS 129 of 2003 before the
Hon’ble Gujarat Revenue Tribunal.
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6.13 Against the order dated 24.07.2003 passed by
the learned Deputy Collector, Olpad, the
respondent no.1 herein preferred Revision
Application No.AS 10 of 2003 before the
Hon’ble Gujarat Revenue Tribunal.
6.14 All above revision applications pending
before the Hon’ble Gujarat Revenue Tribunal
were clubbed together and were being heard
together.
6.15 However without properly considering the
facts of the case and the material and
evidence available on record, Revision
Application No.BS 37 of 2002 preferred by the
petitioner has been rejected, against which,
Special Civil Application No.10478/2008 has
been preferred. Whereas other revision
applications being Revision Application No.AS
5 of 2003, Revision Application No.AS 10 of
2003 & Revision Application No.BS 129 of 2003
preferred by the respondent no.1 herein have
been allowed and granted reliefs as prayed
for therein, against which, Special Civil
Application No.10476/2008, Special Civil
Application No.10479/2008 & Special Civil
Application No.10477/2008 respectively have
been preferred.
7. Heard learned Senior Counsel, Mr. Percy Kavina
assisted by learned advocate, Ms. Aishwari Shah
for the petitioner, learned advocate, Ms. Dilbur
Contractor for Mr. P.R. Nanavati for the
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respondent no.1, learned advocate, Ms. Kruti Shah
for the respondent no.2. Even the parties to the
present proceedings are also present before this
Court, who have been identified by their
respectively learned advocates.
8. Learned advocates appearing for the parties have
submitted that the present matters have chequered
history, which can be evidence from the facts
narrated hereinabove. They, however, submitted
that because of the controversy involved in the
matters, the parties have decided to settle the
matter outside of the Court and accordingly, they
have entered into settlement and in support of the
said fact, affidavits of the respondents in each
matter along with the settlement deed executed
between the parties have produced on record.
Learned Senior Counsel, Mr. Kavina has also drawn
attention of this Court towards the provision of
Order XXIII, Rule 1 of the Civil Procedure Code,
which provides for “withdrawal and adjustment of
suits”. He submitted that in view of the above
provision, when the settlement is arrived at by
and between the parties, in that event, the
proceedings may be put to an end and the
proceedings, on the basis of which consequent
proceedings have taken place, may be permitted to
be withdrawn. At this stage, he has drawn
attention of this Court towards the CAV IA
Judgment dated 18.11.2024 passed by the Coordinate
Bench of this Hon’ble Court in Civil Application
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(for direction) No.1 of 2024 in First Appeal
No.2238/2012 and allied matters (in case of
Kantilal Ambalal Patel Vs. Nakulan S. Paniker &
Ors.) and submitted that the Coordinate Bench of
this Hon’ble Court had come across similar type of
case, wherein the said First Appeal was preferred
against the judgment and decree passed in the
suit, however pending said appeal, when the
settlement was arrived at between the parties, in
that event, the Coordinate Bench of this Court,
permitted the parties to withdrawn the main
proceedings i.e. suit and on the strength of the
settlement produced on record, appropriate order
was passed. He, therefore, submitted that
considering the ratio laid down by the Coordinate
Bench of this Court in the aforesaid decision,
appropriate order may be passed considering the
settlement arrived at by and between the parties
permitting the parties to withdraw the main
proceedings.
9. Learned Senior Counsel, Mr. Kavina has referred to
the provision of Order XXIII Rule 1 of the CPC and
submitted that the said provision governs the
withdrawal of the suit and clearly indicates two
different aspects. He submitted that if the
original applicant wishes to withdraw the suit or
claim, Court does not come in the way and no order
of the Court is required, if the party is
withdrawing simpliciter, i.e. unconditionally. It
is only when the party wishes to withdraw the suit
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conditionally, reserving a liberty to file a fresh
suit, that the Court would step in. Sub-rule (4)
of Rule 23 provides that when the original
applicant abandons any suit or withdraws from the
suit or a part of claim etc., he may be permitted
to do so and only restriction is that he shall be
liable for costs as the Court may award.
Therefore, the prerogative lies with the plaintiff
and abandonment of the suit is voluntary. He
submitted that all above aspects have been
considered by the Coordinate Bench of this Court
in the aforesaid decision and allowed the parties
to withdrawn the suit. He submitted that the
permission may be granted to withdraw the
proceedings in question inasmuch as, the Hon’ble
Supreme Court, in numerous cases, has laid down a
crystal clear principle that right cannot be
allowed to be destroyed while permitting the
withdrawal of the proceedings at the appellate
stage. In the case on hand the right is accrued
upon the respondent no.1 and he is desirous of
withdrawing the proceedings, for which there is no
bar and there is no vesting taken place in favour
of other parties. It is, therefore, urged by
learned advocates appearing for the parties, the
settlement may be considered and permission, based
on such settlement, may be granted so that entire
dispute can be resolved and put to an end.
10. In view of the above submissions canvassed by
learned advocates for the parties and having
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considered the facts of the case coupled with the
material and evidence available on record
including the affidavits filed by the respondents
along with settlement deed, the moot question,
which has arisen for consideration of this Court,
is as to whether the Court can consider the
settlement arrived at by and between the parties
in the present pending proceedings for the
proceedings, which have already been concluded
and/or disposed of.
11. As can be seen from the facts narrated
hereinabove, the dispute pertains to the land in
question, which was originally belonging to the
respondent no.2 – Shantiniketan Trust, who was
imparting education, however because of some
reasons, the land in question has been gifted to
the petitioner herein, who, after obtaining
necessary permission from the competent authority
including seeking permission of NA, started
imparting education to sizable number of students.
However in between, the respondent no.1, who was
claiming himself as tenant over the land in
question, sought declaration declaring him as
tenant and the revenue authority had declared him
as tenant and thus because of same, different
litigations had arisen, which reached upto the
Hon’ble Gujarat Revenue Tribunal by filing
different revision applications either by the
petitioner or by the respondent no.1, wherein the
orders have been passed against the petitioners,
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therefore, all above four writ petitions have been
preferred before this Hon’ble Court challenging
impugned orders therein.
12. However as submitted by learned advocates
appearing for the parties, they have arrived at
settlement, which have been reduced into writing,
copies of which are produced on record. Therefore
in the facts of the present case, the submission
of learned Senior Counsel, Mr. Kavina relying upon
the CAV Judgment of the Coordinate Bench of this
Court in case of Kantilal Ambalal Patel (supra) is
required to be taken into consideration. In the
said decision, First Appeal was preferred before
this Hon’ble Court inter alia challenging the
judgment and decree passed by the learned Civil
Court and thus, the suit had been decreed, which
was sought to be withdrawn and after considering
the submissions canvassed by learned advocates
appearing for the parties, the Coordinate Bench of
this Court permitted the parties to withdraw the
suit, which was already decree though there was
strong objection by the contesting respondents.
Not only that, the Coordinate Bench has also
considered various decisions of the Hon’ble
Supreme Court while passing said order. Thus
considering the ratio laid down by the Coordinate
Bench of this Hon’ble Court as stated above as
also laid down by the Hon’ble Supreme Court in
numerous case laws, if party has compromised, and
wants to withdraw the main proceedings initiated
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at his instance, in that event, it should be
permitted unless the parties are acting against
the public interest.
13. Relevant observations made by the Coordinate Bench
of this Court in case of Kantilal Ambalal Patel
(supra) read as under,
“17. Therefore, withdrawal of the suit in question is
sought for at the appellate stage and therefore,
the issue is whether the withdrawal can be
permitted on mere application filed or the aspect
of rights acquired under the decree, need to be
examined. In the above background, the provisions
of the Code so also the facts are required to be
considered. Relevant would be Order XXIII Rule 1 of
the Code, which provides for withdrawal of suit or
abandonment of part of claim. It states that any
time, after the institution of the suit, the
plaintiff may as against all or any of the
defendants, abandon his suit or abandon a part of
his claim. Sub-rule (1) of Rule 1 of Order XXIII
gives a liberty in favour of the plaintiff to
withdraw the suit. Order XXIII of the Code since
have been discussed and argued, is reproduced
herein below for ready reference:-
“1. Withdrawal of suit or abandonment of
part of claim.–(1) At any time after the
institution of a suit, the plaintiff may as
against all or any of the defendants abandon
his suit or abandon a part of his claim:
Provided that where the plaintiff is a
minor or other person to whom the provisions
contained in rules 1 to 14 of Order XXXII
extend, neither the suit nor any part of the
claim shall be abandoned without the leave
of the Court.
(2) An application for leave under the
proviso to sub-rule (1) shall be accompanied
by an affidavit of the next friend and also,
if the minor or such other person isPage 13 of 50
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represented by a pleader, by a certificate
of the pleader to the effect that the
abandonment proposed is, in his opinion, for
the benefit of the minor or such other
person.
(3) Where the Court is satisfied,–
(a) that a suit must fail by reason of some
formal defect, or
(b) that there are sufficient grounds for
allowing the plaintiff to institute a fresh
suit for the subject matter of suit or part
of a claim,
It may, on such terms as it thinks fit grant
the plaintiff permission to withdraw from
such suit or such part of the claim with
liberty to institute a fresh suit in respect
of the subject-matter of such suit or such
part of the claim.
(4) Where the plaintiff–
(a) abandons any suit or part of claim under
sub-rule (1), or
(b) withdraws from a suit or part of a claim
without the permission referred to in sub-
rule (3),
he shall be liable for such costs as the
Court may award and shall be precluded from
instituting any fresh suit in respect of
such subject-matter or such part of the
claim.
(5) Nothing in this rule shall be deemed to
authorise the Court to permit one of several
plaintiffs to abandon a suit or part of a
claim under sub-rule (1), or to withdraw,
under sub-rule (3), any suit or part of a
claim, without the consent of the other
plaintiff.
3. Compromise of suit.–Where it is proved to
the satisfaction of the Court that a suit
has been adjusted wholly or in part by any
lawful agreement or compromise 1 in writing
and signed by the parties] or where the
defendant satisfied the plaintiff in respect
to the whole or any part of the subject-
matter of the suit, the Court shall order
such agreement, compromise or satisfaction
to be recorded, and shall pass a decree in
accordance therewith [so far as it relates
to the parties to the suit, whether or not
the subject matter of the agreement,
compromise or satisfaction is the same as
the subject-matter of the suit:
Provided that where it is alleged by
one party and denied by the other that an
adjustment or satisfaction has been arrived
at, the Court shall decide the question; butPage 14 of 50
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not adjournment shall be granted for the
purpose of deciding the question, unless the
Court, for reasons to be recorded, thinks
fit to grant such adjournment.”
Reading of sub-rule (1) of Rule 1 of Order
XXIII of the Code suggest that it gives liberty to
the plaintiff at any time after the institution of
the suit against all or any of the defendants, to
abandon the suit or part of the claim. So far as
Rule 3 is concerned, the same provides for
compromise of the suit and satisfaction of the
Court, followed by passing of decree in accordance
therewith. Discernibly, the applicants are seeking
withdrawal of the suit simpliciter. In the present
case, though there is settlement between the
parties, the parties are not proposing for disposal
of the suit in accordance with the compromise.
Hence, at the outset, it is to be stated that Order
XXIII Rule 3 of the Code is not the case on hand.
Submissions of Mr R.S. Sanjanwala, learned Senior
Counsel as regards Order XXIII Rule 3, hence,
cannot be accepted. The issue is of withdrawal of
the suit simpliciter and at the appellate stage.
Thus, some of the judgments dealing with the
principle, need to be referred to.
18. Heavy reliance is placed on the judgments by both
the parties in the case of R. Rathinavel Chettiar
vs. V. Sivaraman (supra). The issue before the Apex
Court, was that can the decree, determining the
rights of the parties to the suit, be destroyed by
making an application for dismissing the suit as
not pressed or unconditionally withdrawing the suit
at the appellate stage, if the suit has already
been decreed or for that matter dismissed. The Apex
Court, while considering various decisions of thePage 15 of 50
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High Courts, held and observed that where a decree
passed by the trial Court is challenged in appeal,
it would not be open to the plaintiff, at that
stage, to withdraw the suit so as to destroy that
decree. The rights which have come to be vested in
parties to the suit under the decree cannot be
taken away by withdrawal of suit at that stage
unless very strong reasons are shown that the
withdrawal would not affect or prejudice anybody’s
vested rights. The facts were that the plaintiff
therein filed a suit against the defendants seeking
direction of putting him in possession of the
property. Suit was decreed by the trial Court
against the defendants and the defendants filed an
appeal before the High Court and during the
pendency of the appeal, the appellants were
impleaded as respondents inasmuch as, three days
after the decree was passed by the trial Court, the
plaintiff sold the properties to the appellant and
the properties in the suit had been assigned to
them. It is thereafter that the plaintiff prayed
for dismissal of the suit owing to the compromise
with the defendants. The suit was allowed to be
dismissed and being aggrieved, the appellant, the
newly impleaded party was before the Apex court. It
was the argument that as the appellant was a
tranferees-pendente-lite and was vitally interested
in the decree remaining intact and the plaintiff
having declared to be owner of the property in the
suit by the trial Court, dismissal of the suit
would be destroying the decree passed in favour of
the plaintiff. Paragraphs 15 to 25 read thus:-
“15. In Kedar Nath and others vs. Chandra
Kiran and others, AIR 1962 Allahabad 263,
permission to withdraw the suit at the stage
of second appeal was refused. The CourtPage 16 of 50
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observed that where the case is at the stage
of second appeal and the trial court has
given a finding of fact which is binding in
second appeal, the Court should not deprive
the party of the plea of res judicata by
allowing the plaintiff to withdraw the suit
at that stage.
16. This decision was considered by the
Division Bench of the same High Court in
Vidhydhar Dube and others v. Har Charan and
others, AIR 1971 Allahabad 41 and was
approved. It was held that the right of the
plaintiff to withdraw the suit at the
appellate stage is not an absolute right but
is subject to rights acquired by defendant
under the decree. It was also observed that
withdrawal may be permitted if no vested or
substantive right of any party to the
litigation is adversely affected. The
decision of this Court in Hulas Rai Baij
Nath v. K.P. Bass & Co., AIR 1968 SC 111,
was also considered and distinguished by
observing as under:-
“In that case the Court had to consider the
right of a plaintiff to withdraw the suit
before a decree came into existence and not
after the decree had come into being. It was
observed: “It is unnecessary for us to
express any opinion as to whether a Court is
bound to allow withdrawal of the suit of a
plaintiff after some vested right may have
accrued in the suit in favour of the
defendant. On the facts of this case, it is
clear that the right of the plaintiff to
withdraw the suit was not at all affected by
any vested right existing in favour of the
appellant and, consequently, the order
passed by the trial court was perfectly
justified.” In the present case, however, a
right has become vested in the defendant
after the decree in the suit had been
passed.”
17. Kedar Nath case was followed in
Kanhaiya v. Dhaneshwari, AIR 1973 Allahabad
212, in which it was again laid down that
the plaintiff does not have an unqualified
or unfettered right under Order 23 Rule 1(1)
C.P.C. to withdraw the suit at the appellate
stage when rights have accrued to the
respondents under the decree.
18. Both these decisions, namely, the
decision of the Allahabad High Court in
Kedar Nath case and Kanhaiya case were
followed by the Andhra Pradesh High Court in
Thakur Balaram Singh v. K. Achuta Rao, 1977
(2) A.P.L.J. 111, and it was held that
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though the plaintiff has an absolute right
to withdraw his suit before the passing of a
decree under Order 23 Rule 1(1) C.P.C. but
permission to withdraw the suit at the
appellate stage would be refused if it would
have the effect of prejudicing or depriving
any right which became vested in the
respondents or had accrued to them by reason
of the findings recorded by the trial court.
19. The Allahabad decisions, referred to
above, were followed by the Rajasthan High
Court in Ram Dhan v. Jagat Prasad Sethi, AIR
1982 Rajasthan 235, and Kasliwal, J.(as he
then was) held that if the withdrawal of the
suit at the appellate stage would have the
effect of destroying the rights which had
come to be vested in the defendant-
respondents, the suit would not be permitted
to be withdrawn. It was also held that
though the plaintiff has an unqualified
right to withdraw the suit under Order 23
Rule 1(1) C.P.C., he cannot be allowed to do
so at the appellate stage. It was observed
that though it is right that the plaintiff
would be precluded from bringing a fresh
suit on the same subject matter, it could
not be denied that the defendant would not
be entitled to use the findings given in
such a suit as res judicata in subsequent
proceedings.
20. The same view was also expressed by
the Punjab and Haryana High Court in Sh.
Guru Maharaj Anahdpur Ashram Trust Guna v.
Chander Parkash, 1986 (1) 89 Punjab Law
Reporter 319. The Court observed:-
“Once the decree is passed by the trial
court, certain rights are vested in the
party in whose favour the suit is decided.
Thus, the plaintiff is not entitled to
withdraw the suit as a matter of course at
any time after the decree is passed by the
trial court. In these circumstances, the
lower appellate court has acted illegally by
allowing the plaintiffs to withdraw the suit
after setting aside the judgment and decree
of the trial court dismissing the suit.”
21. In another Allahabad decision in Jutha
Ram v. Purni Devi, ILR 1970 (1) Allahabad
472, the plaintiff compromised the suit with
certain defendants at the appellate stage
and gave an application to withdraw the suit
against those defendant-respondents. The
Court refused permission to withdraw the
suit as the withdrawal would have the effect
of depriving the other respondents of the
benefit of the lower courts’ adjudication in
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their favour. This decision, incidentally,
applies squarely to the facts of the present
case as in this case also the plaintiff
compromised with one of the respondents and
gave an application for withdrawal of suit.
Obviously, the intention was to deprive the
appellants of the benefit which had accrued
to them on account of a declaratory decree
having been passed in favour of the
plaintiff who incidentally was their
predecessor-in- interest.
22. In view of the above discussion, it
comes out that where a decree passed by the
trial court is challenged in appeal, it
would not be open to the plaintiff, at that
stage, to withdraw the suit so as to destroy
that decree. The rights which have come to
be vested in parties to the suit under the
decree cannot be taken away by withdrawal of
suit at that stage unless very strong
reasons are shown that the withdrawal would
not affect or prejudice anybody’s vested
rights. The impugned judgment of the High
Court in which a contrary view has been
expressed cannot be sustained.
23. The High Court also committed an error
in not considering the impact of Rule 1-A
which was inserted in Order 23 by the Code
of Civil Procedure (Amendment) Act, 1976
(104 of 1976). This Rule provides as under:-
"1-A. When transposition of
defendants as plaintiffs may be
permitted.- Where a suit is
withdrawn or abandoned by a
plaintiff under Rule 1, and a
defendant applies to be transposed
as a plaintiff under Rule 10 of
Order I, the Court shall, in
considering such application, have
due regard to the question whether
the applicant has a substantial
question to be decided as against
any of the other defendants.”
24. The appellants before us, no doubt,
had not applied before the High Court for
being transposed as plaintiffs in place of
the original plaintiff who had made an
application for withdrawal of suit, but it
cannot be overlooked that the plaintiff had
transferred the property in suit in favour
of the appellants, and, that too, after a
declaration was given in his favour by the
trial court that he was the owner of that
property. It was thereafter that the
appellants were impleaded as respondents in
the appeal under Order 22 Rule 10 C.P.C.
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Once the property was transferred to the
appellants and the appellants were also
impleaded as respondents in the appeal
before the High Court, they were virtually
in the position of the plaintiffs. Since
they had purchased the property from the
plaintiff after a declaration was given in
his favour that he was the owner, a valuable
right came to be vested in the appellants
which could not be taken away by the
plaintiff by withdrawal of the suit
unconditionally as the withdrawal was
positively to have the effect of destroying
the decree already passed in favour of the
plaintiff.
25. As a desperate bid to save the lost
battle, learned counsel for plaintiff-
respondent No. 1 contended that since the
appellants had obtained the sale-deed by
fraud, which would not have the effect of
conveying any title to them, they cannot, in
the matter of withdrawal of suit, intervene
nor can they be heard to oppose withdrawal.
We are not entering into the legality of the
sale-deed as it is not the subject matter of
the suit under appeal. Since appellants had
already been impleaded as respondents in the
appeal on the basis of that sale-deed, they
have a right to be heard in the matter of
withdrawal of suit.”
It has been held and observed that the
withdrawal of the suit at the appellate stage, if
allowed, would have the effect of destroying or
nullifying the decree affecting thereby the rights
of the parties which came to be vested under the
decree, and it cannot be allowed as a matter of
course but has to be allowed rarely, only when a
strong case is made out.
19. In another decision in the case of Executive
Officer, Arthanareswarar Temple vs. R.
Sathyamoorthy (supra), the issue was somewhat
similar. The Apex Court, while allowing the appeal,
noted that the respondent sought to withdraw the
original petition as well as the revision petition,
to which the objection was raised on the ground
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that if the withdrawal is permitted, the department
would be put to great difficulties. The point for
consideration before the Apex court was, whether
order of the High Court permitting withdrawal of
the revision petition and the original petition,
was liable to be interfered with. The Apex Court,
while allowing the appeal, in paragraph 14, has
observed thus:-
“14. It is true that in a large number of
cases decided by the High Courts, it was
held while dealing with applications under
Order 23, Rule 1, CPC, that if an appeal was
preferred by an unsuccessful plaintiff
against the judgment of the trial Court
dismissing the suit and if the plaintiff
appellant wanted to withdraw not only the
appeal but also the suit unconditionally,
then such a permission so far as the
withdrawal of the suit was concerned, can be
granted if there was no question of any
adjudication on merits in favour of the
defendants by the trial being nullified by
such withdrawal. On the other hand, if any
such findings by the trial court in favour
of the defendant would set nullified, such
permission for withdrawal of the suit should
not be granted. (See Thakur Singh v. A.
Achuta Rao; Kedar Nath v. Chandra Karan; V.
Dube v. Harcharan; Charles Samuel v. Board
of Trustees; Lala Chetram v. Krishnamoni;
Jubedan Begum v. Sekhawat Ali Khan;Ram Dhan
v. Jagat Prasad. In the present case, the
learned Judge felt that no such finding in
favour of the Commissioner was being
nullified by the withdrawal of the OP at the
stage of revision and therefore the
withdrawal of OP was permissible.”
20. Yet in another judgment in the case of Sneh Gupta
vs. Devi Sarup & Ors. (supra), the Apex Court in
paragraph 20 has observed thus:-
“20. It is not a case where the original
plaintiff applied for withdrawal of the suit
similiciter. She did so relying on or on the
basis of a compromise entered into by and
between the parties. If a suit is to be
decreed or dismissed on the basis of a
compromise, even permission to withdraw thePage 21 of 50
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suit pursuant thereto, in our opinion, order
XXIII Rule 1 of the Code may not have any
application. Even in such a case, a
permission to withdraw the suit could have
been given only with notice to the
respondents who had become entitled to some
interest in the property by reason of a
judgment and decree passed in the suit. The
Court for the purpose of allowing withdrawal
of a suit after passing the decree, viz., at
the appellate stage, is required to consider
this aspect of the matter.”
It has been held and observed that if the suit
is to be decreed or dismissed, that the Court for
the purpose of allowing the withdrawal of the suit,
after passing the decree, namely, at the appellate
stage is required to issue notice to the
defendants, who had become entitled to some
interest in the property by reason of a judgment
and decree.
21. Common thread running through all the judgments is
that while allowing withdrawal of the suit after
passing of the decree and at the appellate stage,
the Court shall determine whether withdrawal would
have the effect of destroying or nullifying the
decree, thereby affecting the rights of the parties
which came to be vested. Pertinently, in the case
on hand, the request of withdrawal of the suit,
though simpliciter, is at the appellate stage.
Besides, it is not the case where the plaintiff has
lost in the suit and in appeal, is desirous of
withdrawing, both the appeal and the suit, but is
the case where the plaintiff though has succeeded
and the findings recorded are in his favour, is
desirous of withdrawing the suit. The resultant
effect would be that the judgment & decree would go
and documents and deeds would revive. The findings
recorded are against the defendants as to how they
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have illegally executed the agreements, power of
attorney so on and so forth. It is difficult to
fathom as to how these findings can be said to be
in favour of Harishchandrasinhji Jadeja and Kalpesh
Patel or any right having been vested. The findings
surely are not in their favour.
22. Therefore, considering the above-referred
principle, brief facts derived from the record, are
worth referring to, as it would be necessary to
examine whether there are any findings in the
impugned judgment and consequent vesting of the
rights in favour of the objectors, namely,
Harishchandrasinhji Jadeja and Kalpesh Atmaram
Patel and withdrawal would nullify the same ?
23. Discernibly, in the year 2010, various documents
were executed between plaintiff – Kantilal Patel on
one hand and Siddhi Infrastructure and Nakulan S.
Paniker on the other. On 29.04.2010, agreement was
executed for transfer of land in question for Rs.76
crore and all rights under the decree dated
07.02.2001 were assigned. Partnership deed was
executed by and between plaintiff – Kantilal Patel
and Vallabhji Nagada on 19.07.2010 whereby, both of
them became the partners of Sai Developers as per
their respective shares; followed was another
agreement dated 31.07.2010 between plaintiff –
Kantilal Patel and Vallabhji Nagada wherein,
assigning of decretal rights in favour of Siddhi
Infrastructure was also recognized. Possession
receipt dated 31.07.2010 was accordingly issued by
plaintiff – Kantilal Patel, signed by the applicant
– Dollyben Patel as witness.
24. On 31.07.2010, registered power of attorney has
been executed in favour of Arvind Jani, i.e.
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defendant no.3 and Vallabhji Nagada, i.e. defendant
no.4 for carrying out duties and executing contract
in favour of Nakulan Paniker – defendant no.2. The
agreement which was executed between plaintiff –
Kantilal Patel and Siddhi Infrastructure through
its partner dated 26.07.2010, was registered. It
was agreed that the agreement dated 29.04.2010
would be treated as part of that agreement.
Consideration was also agreed with certain
modifications. Another agreement was executed by
Arvind Jani, the power of attorney holder of
plaintiff – Kantilal Patel in favour of Siddhi
Infrastructure on 06.08.2010.
25. It appears that the understanding did not went
through as desired and hence, plaintiff – Kantilal
Patel filed a Special Civil Suit no.186 of 2010,
raising the grievance that the agreements dated
29.04.2010, 02.08.2010, 06.08.2010 and other are
voidable at the instance of the plaintiff and are
required to be set aside. Following issues were
formulated:
“(1) Whether the Plaintiff proves that
the defendants have committed breach of
trust and agreement in complying with the
agreement dated 02.08.2010?
(1-A) Whether the Plaintiff proves that
the Plaintiff no.2 is entitled to file
the suit by virtue of Power of Attorney
given by Plaintiff no.1?
(2) Whether the Plaintiff proves that
he is the owner and in possession of the
suit property?
(3) Whether the Plaintiff proves that
the defendants no.3,4 in collusion with
defendant no.1, 2 have entered into
agreement dated 06.08.2010 without
consent and knowledge of the Plaintiff?
(4) Whether the Plaintiff proves that
defendants no.3,4 in collusion with
defendants no.1.2 have cheated the
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Plaintiff?
(5) Whether the Plaintiff proves that
the defendants in collusion have entered
into agreement dated 02.08.2010 being
well aware of the fact that the
proceedings/formalities relating to
title-clearance would not be completed
within four months?
(6) Whether the Plaintiff proves that
defendants have committed breach of
agreements dated 29.04.2010, 02.08.2010
and 06.08.2010?
(7) Whether the defendants prove that
they have duly complied with the terms of
the agreement dated 02.08.2010?
(8) Whether the defendants no.1,2 prove
that the Plaintiff had consented for
payment of cheques of balance amount of
consideration of Rs.66 crores to be paid
to Power of Attorney?
(9) Whether the defendants prove that
the suit is barred by O.II R2 of the Code
of Civil Procedure?
(10) What order and decree?”
Bare perusal of the issues formulated in the
suit in question clearly suggests that the
controversy was revolving around the agreement,
power of attorney and the deeds executed between
the plaintiff and the defendants therein.
Harishchandrasinhji Jadeja and for that matter
Kalpesh Patel were nowhere in the picture. While
deciding the issue nos.1 to 6, pertaining to the
agreement, the learned Judge in paragraph nos.72 to
79 and 83 to 85, 87, 89 and 90 has observed thus:-
“72. Having heard the rival sabmissions of
the parties and the evidence placed on
record,it appears that the defendants have
colluded and have failed to perform their
part of the obligations under the agreements
dated 29.04.2010 and 02.08.2010. The
defendants have further commited breach of
the previous two agreements by entering into
third agreement dated 06.08.2010 without the
consent,connivance and knowledge of thePage 25 of 50
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Plaintiffs. The pattern of construction of
the covenants,deviation from material terms
and conditions than those agreed under the
previous agreements, its concealment from
the Plaintiffs clearly suggests that it was
designed to gain undue benefits and take
away substantial portion from the amount
payable to the Plaintiffs thus adverse to
the interest of the Plaintiffs and this act
of the defendants amounts to fundamental
breach of the previous two agreements The
defendants have admitted that they have not
paid 66 crores to the Plaintiffs. Under the
agreement dated 02.08.2010 the payment of 66
crores was not mule conditional upon removal
of objections within four monhs the
defendants could not have indefinitely
postponed the payment of 66 crores to the
Plaintiffs.The defendants failed to perform
their part of the contract under the
agreement dated 02.08.2010 and no steps were
taken to settle the claims of third parties.
There is also no evidence to show that
consideration under the agreements has
reached the Plaintiffs.The defendant no.3
entered into conspiracy with defendants
no.1,2 to deprive the Plaintiff of his
valuable rights under the previous
agreements and thus the defendants in
collusion committed breach of terms of
previous two agreements. The defendant no.3
ought to and could have discharged his
duties as agent of Plaintiffs in a honest
and bonafide manner. Theagreement dated
06.08.2010 is signed by the defendant no.3
as power of attorney holder of the
Plaintiffs and not by the Plaimtiffs.On
perusal of the document the power of
attorney granted to defendant no.3,4 does
not specifically empower the defendant no.3
to enter into such agreement ard the action
of the defendant no.3 is outside the scope
of and authority assigned to him under the
power of attorney.
73. Under S.227 of the Contract Act,it is
laid down that when an agent does more than
he is authorised to do, and when the part of
what he does which is within his authority
can be seperated from the part which is
beyond his authority so much only of what he
does as is within his authority is binding
as between him and his principal. Under the
transaction, the obligation of settling
disputes with heirs of Harishchandrasinh and
third parties was cast upon defendant
no.3.The defendant no.3 was never authorisedPage 26 of 50
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to modify the agreements under the power of
attorney given to him.and his act of
modifying the agreement and introducing new
terms and conditions completely deviating
from the previous agreement being outside
the scope of and authority granted to him
under the power of attorney cannot be said
to binding to the Plaintiffs.S.228 of the
Contract Act provides that when an agent
does more than he is authorised to do and
what he does beyond the scope of his
authority cannot be seperated from what is
within ilthe principal is not bound to
recognise the transaction In the fuets of
the case on hand, this aspeci tilts in
favour of the case of the Plaintiffs.in such
a situation, the agreement dated 06.08.2010
signed by defendant no.3 as power of
attorney holder of Plaintiff is not binding
to the Plaintiffs.
74. The defendants no.3,4 have not stepped
into the witness box and hence adverse
inference can be drawn against them.S.215 of
the Contract Act provides that if an agent
deals on his own account in the business of
the agency,without first obtaining the
consent of his principal and acquainting him
with all material circumstances which have
come to hisown knowledge on the subject,the
principal may repudiate the transaction, if
the case shows that any material fact has
been dishonestly concealed from him by the
agent or that the dealings of the agent have
been disadvantageous to him.As the agreement
dated 06.08.2010 was tha result of dealings
of defendant no.3 in collusion with
defendants no.1,2 completely deviating from
the previous two agreement and tentamounts
to an act of fraud and misconduct on the
part of the defendants and the same was
concealed from the Plaintiffs by the
defendants and this heing disadvantageous to
the interests of the Plaintiffs, in context
of the said provision it is open to the
Plaintiff as principal to to repudiate the
transaction as it was made without the
knowledge and consent of the Plaintiffs. The
defendants having thus committed breach of
agreements dated
29.04.2010,02.08.20/0.06.08.2010, the
agreements cre not binding to the Plaintiffs
and the Plaintiffs can be said to have been
discharged from their obligations under
these agreements since the latter part of
the contract was made without the knowledge
of the Plaintiff and was detrimental to hisPage 27 of 50
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interests in the suit land.
75. The Plaintiff no.2 herein is the power
of attorney holder of Plaintiff no.1 and has
joined as a party to the suit in her
capacity as such and has sufficient interest
to file the suit. Two power of attorney
deeds are granted in her favour on
28.07.2010 and 26.10.2010 respectively. and
under these power of attorney’s the
Plaintiff no.2 is entitled to take all legal
steps to protect the interest of Plaintiff
no..Looking to the first Deed of Power of
attorney she is entitled to bring the suit
under this power of attorney. The Plaintiff
no.2 is examined as a witness. The
defendants have also admitted that she was
present when different documents were
executed and thus Plaintiff no.2 is the
natural witness.She has given evidence
relating to the health of Plaintiff no. to
the extent that he was not capable of
understanding the agreements,or take a
rational judgment about it and had
temporarily lost competence to understand
such complex transaction.The evidence given
by her is supported by the version of
Dr.Jwalit Sheth and even by Dr. Kirti Patel
who has supported the version of
neurosurgeon in assessing the Impairment of
mental faculties of Plaintiff no.I This
evidence does not have any impact on the
action of filing of suit.
In the light of the above,l answer
Issue no.1,1-A,2,3,4,5,6 in the affirmative.
ISSUE NO.7,8:
76. In order to avoid repetition of facts
and circumstances, Issue no.7,8 are hereby
decided together.
The defendants have set up a case that
on parellel reading of agreements dated
02.08.2010 and 29.04.2010 it is evident that
after getting title-clearance in respect of
the suit land the remaining amount was to be
paid within one month by the defendants. The
dejendants were ready and willing to make
this payment and have handed over advance
cheques with an asurance that they would be
definitely honoured and thus the defendants
have fulfilled their part of the obligation
under the contract and have complied with
the agreements.lt is contended that thePage 28 of 50
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defendant no.3 was introduced to defendants
no.1,2 at the instance of the Plaintiff as
well as that he had consented for his
inclusion as partner The Plaintiffs were
aware from the inception of the contract
that defendant no.4 was the representative
of defendant no.1,2 and there is no question
of any collusion between the defendants.
77. The other contention raised by the
defendants is that since Kabja Pavti is
seperately issued by Plaintiffs and the
Plaintiffs have admitted their signatures
even if it is not admissible in evidence can
be read in evidence against the Plaintiff
and that the Plaintiff cannot challenge its
legality.It is submitted that looking to the
conduct of the defendants they were ready
and willing to comply with all terms and
conditions of the agreements. As stated in
the agreement dated 29.04.2010 it is
specifically agreed upon that the Plaintiff
would assign power of attorney to
representative of defendant no..The
Plaintiff was quite aware when the power of
attorney was assigned to defendants no.3,4
Under the circumstances, the defendant no.3
was acceptable to all parties and that the
defendant no.3 does not intend to cheat or
cause loss or damage to the Plaintiffs. If
the defendant intended to do so he could
have misused the power of attorney assigned
in the year 2006. The defendant no.3 could
have negotiated any terms and conditions
with defendanis no.1,2 and thereby the
allegations against defendant no.3 are
false.lt is submitted that the defendant
no.4 introduced as a partner at the instance
of defendant no. has taken care of interest
of the Plaintiff in the agreement dated
06.08.2010 to the extent that the defendant
no.4 shall have no share in the amount of 66
crores and thus the allegations against
defendant no.4 are baseless.It is contended
that no new conditions are incorporated in
the agreement dated 06.08.2010 but are
explanatory with respect to earlier
agreements.
78. In lieu of agreement dated 02.08.2010,
the defendant no.1 was to pay 66 crores
within four months on completion of
settlements with heirs of Harishchandra and
third party banakhat holders.The obligation
of bringing about settlements with third
parties was cast on defendant no.3.NoPage 29 of 50
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evidence is placed on record to show that
understanding was arrived at between
defendant no.3 and third parties or that
efforts were made by defendant no.3 to have
a dialogue with third parties. Instead the
defendants no.1,3 entered into altogether
different agreement dated 06.08.2010
deviating in material terms from the
previous two agreements. This agreement was
made without the consent,connivance and
knowledge of the Plaintiffs and as evident
from the language and construction of the
covenants it appears that there was
concealment with respect to the contents in
the agreement. This agreement is not signed
by the Plaintifs. It is the say of the
defendant no. that he has delivered cheques
of 66 crores to defendant no.3 and has thus
performed his par of the obligation under
the contract. There is no evidence on record
to show that the defendant no.1,2 ever had
any financial tie-ups or linkages with any
bank or financial institutions. The
defendant no.I has also not produced bank
statement or books of accounts. He has
further stated in his deposition that he
does not remember how much moneys have been
invested by him in the project. Rajesh Nagda
who has given evidence on behalf of
defendant no.1,2 as Chartered Accountant of
defendant no.1,2 and as son of defendant
no.4 has stated in his version that he does
not know who invested the moneys for the
drafts of earnest money from whose account
the moneys were withdrawn. He does not know
from which account cheques for 66 crores
have been drawn.He does not know whether the
defendant no.2 firm had any financial tie-
ups with banks or financial institutions. He
does not whether there was balance of 66
crores in the account of the firm Under the
circumstances the dejendants have failed to
establish that they had the capacity to pay
66 crores.Mere delivery of cheques cannot be
taken into account to consider readiness and
willingness’ on the part of the defendants.
The defendants have admitted in their
depositions that they have not paid the
amount of 66 crores to the Plaintiffs.The
defendants no.3,4 have not entered the
witness box and hence adverse inference can
be drawn against them.
79. In the light of the above, as the
defendants have failed to establish that
they complied with terms of agreement dated
02.08.2010 and have also failed to establishPage 30 of 50
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that the Plaintiff had consented for payment
of cheques to defendant no.3,1 answer Issue
no.7,8 in the negative.
83. Reliance is placed on the judgment in
the case of Jemma V.Raghu as reported in AIR
1977 Ori 12 wherein it is observed that
under S.34,41 of the Specific Relief Act,
when Plaintiff is not in possession, relief
of injunction cannot be granted.
In the facts of the case therein it
came to be observed that as the Plaintiff
was not in possession on the date of the
suit was therefore not entitled to relief of
injunction without cliaming for recovery of
possession. In the facts of the case on
hand, it is the case of the Plaintiffs that
they never agreed to deliver possession of
the suit property to the defendants. It is
also expressly stated in the agreements
dated 29.04.2010 and 02.08.2010 that the
possession would remain with the Plaintiffs
and that the same would be delivered only at
the time of execution of Sale-deed when full
payment is received. The registered
agreement dated 02.08.2010 presented for
registration before the Sub-registrar,a
statutory authority under the Registration
Act indicates that possession is not
delivered to the defendants.The Kabja Pavti
by which the defendants claim to be in
possession being unregistered and not duly
stamped as required under the legal mandate
is not admissible in evidence as proof of
lawful possession on the part of the
defendants in the absence of any Deed of
Conveyance.It is the case of the Plaintiffs
that the defendants have deliberately
sneaked into possession.This claim by way of
Kabja Pavti is made to support their another
false claim that possession of the suit
property was handed over by the Plaintiffs
and have created a false show that they are
in possession.In this context this citation
is not useful to the case of the defendants.
ISSUE NO.9:
84. The defendants have resisted the filing
of the present suit on the ground that the
Plaintiffs had earlier filed
Sp.C.S.no.295/2010 in respect of the same
relief as mentioned Para 5(d) of the plaint
on 27.09.2010 while the present suit is
filed on 29.09.2010 and that therefore thePage 31 of 50
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Plaintiff is not entitled to bring the
present suit and is not tenable-under
OIl.R.2 of the code of Civil Procedure.A
perusal of the record indicates that the
same has been withdrawn on technical grounds
relating to jurisdiction and no more
survives. The Plaintiffs have pleaded all
reliefs claimed by them in the present suit
and hence the suit is not burred under
OlI.R.2 of the Code of Civil Procedure.
Accordingly, I answer Issue no.9 in the
negative.
ISSUE NO.10:
85. It is the case of the Plaintiffs that
the agreements dated 29.04.2010,
02.08.2010,06.08.2010 and other agreements
made between Plaintiffs and defendants are
voidable at the instance of the Plaintiffs
and are required to be set aside.On
comparison of terms and conditions of the
agreements dated 29.04.2010 and 02.08.2010
on one hand and the terms and conditions of
the agreement dated 06.08.2010 on the other
hand, it appears that the agreement dated
06.08.2010 contained terms and conditions
totally inconsistent with the terms and
conditions of the previous two agreements
dated 29.04.2010 and 02.08.2010.The
agreement is on a quite different footing in
respect of modalities of terms of payment
and there is complete deviation from the
previous two agreementsThe pattern of
construction of the covenants and the
changes made in the terms and conditions
seems to have been made in the self-interest
of the makers of the agreement and
detrimental to the interests of the
Plaintiff and suggests bad faith,breach of
trust,malafides and fraudulent and wrongful
actions of the defendants.
86. The witness Dr.Jwalit Sheth examined on
behalf of the Plaintiffs has opined that
during the period between March-August,2010
the mental faculties of Plaintiff no. were
impaired and was not found to possess
sufficient mental capacity to take well
informed decisions regarding the management
of his affairs on his own or to comprehend
the nature of transactions and their terms
and conditions of his own and would not have
been able to read and fully understand such
documents, appreciate or respond to thePage 32 of 50
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same.
87. As per the agreement dated 02.08.2010,
the amount of 66 crores was to be paid
within four months on completion of
settlements with third parties. The task of
bringing about settlements with heirs of
Harishchandrasinh Jadeja and third party.
banakhat holders was assigned to defendant
no.3 as power of attorney of Plaintiff
no.1.Admittedly,the defendant no.3 Arvind
Jani has not entered the witness-box. No
evidence is produced which would go to show
that the defendant no.3 had made any efforts
to enter into such understanding or whether
he had any dialogue with third parties.The
witness Rajesh Nagda ,son of defendant no.4
has given evidence in his capacity as
Chartered Accountant of defendant no.1,2 and
son of defendant no.4. He has also admitted
that the defendants have not paid the sum of
66 crores to the Plaintiffs. There is no
evidence on record io show that defendant
no.2 firm has any financial capacity to pay
66 crores.No evidence is placed on record
which would suggest that the firm had any
financial tie-up or had borrowed loan or
working capital from any banks or financial
institutions for paying 66 crores or that
the firm had any internal financial strength
to make such payment. No audited accounts
are placed on record. The defendant no.4 has
admitted that there is no evidence that the
defendant firm possessed capacity to pay 66
crores Both witness Rajesh Nagda and
defendant no.l have admitted in their
depositions that they have not paid the sum
of 66 crores to the Plaintiffs but have
merely handed over cheques to defendant
no.3.Mere issuance of cheques without any
evidence regarding financial tie-ups or
arrangements for clerunace of such cheques
cannot be considered to be an act of
readiness and willingness on the part of the
defendants to fulfill their obligations
under the contract and cannot be construed
as actual performance under the agreement
dated 02.08.2010.The defendants have
admitted that they have not paid 66 crores
to the Plaintiffs. Under the agreement dated
02.08.2010 the payment of 66 crores was not
made conditional upon removal of objections
within four months the defendants could not
have indefinitely postponed the payment of
66 crores to the Plaintiffs This impliedly
suggests that the defendants did not perform
their part of the contract. There is also noPage 33 of 50
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evidence to show that consideration under
the agreements has reached the Plaintiffs.
Under the circumstances, even if it is
construed that the Plaintiff no. was in a
fit state of health the fact remains that
the balance amount of consideration under
the agreement has not reached the
Plaintiffs.
89. The defendants no.3,4 have not stepped
into the witness box and hence adverse
inference can be drawn against them.S.215 of
the Contract Act provides that if an agent
deals on his own account in the business of
the agency, without first obtaining the
consent of his principal and acquainting him
with all material circumstances which have
come to his own knowledge on the subject,
the principal may repudiate the transaction,
if the case shows that any material fact has
been dishonestly concealed from him by the
agent or that the dealings of the agent have
been disadvantageous to him.As the agreement
dated 06.08.2010 was the result of dealings
of defendant no.3 in collusion with
defendants no.1,2 completely deviating from
the previous two agreement and tentamounts
to an act of fraud and misconduct on the
part of the defendants and the same was
concealed from the Plaintiff’s by the
defendants and this being disadvantageous to
the interests of the Plaintiffs in context
of the said provision it is open to the
Plaintiff as principal to to repudiate the
transaction as it was made without the
knowledge and consent of the Plaintiffs.The
defendants having thus committed breach of
agreements dated
29.04.2010,02.08.2010.06.08.2010 the
agreements are not binding to the Plaintiffs
and the Plaintiffs can be said to have been
discharged from their obligations under
these agreements
90. The defendants claim that they are in
possession of the suit land by way of
Receipt of Possession (Kabja Pavti) dated
31.07.2010.The defendants claim that they
have availed telephone and electricity
connections on the site, entered into
correspondence with security services and
are in possession of the suit land.it is the
case of the Plaintiffs that they never
agreed to deliver possession of the suit
property to the defendants.It is also
expressly stated in the agreements datedPage 34 of 50
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29.04.2010 and 02.08.2010 that the
possession would remain with the Plaintiffs
and that the same would be delivered only at
the time of execution of Sale-deed when full
payment is received. The said Kabja Pavti is
not a registered document. It is well
settled legal preposition that full stamp
duty and registration is required if there
is transfer of possession. Since the Kabja
Pavti is not registered and does not bear
the stamp duty payable under the transaction
the same cannot be made admissible in
evidence for holding that defendants are in
possession of the suit property. The
registered agreement dated 02.08.2010
presented for registration before the Sub-
registrar, a statutory authority under the
Registration Act indicates that possession
is not delivered to the defendants.This
Kabja Pavti being unregistered and not duly
stamped as required under the legal mandate
is not admissible in evidence as proof of
lawful possession on the part of the
defendants in the absence of any Deed of
Conveyance Under the circumstances, since
one of the sole object of the suit is
protection by means of prohibitory order, if
defendants are not restrained by way of any
prohibitory relief as sought for and the
subject matter of the dispute is not
directed to be preserved or such order is
withheld it may practically result in the
property being unlawfully withheld by
dejendants in the event of any unplesant
actions as complained of in the present suit
and might even result in suit property going
away from the hands of the Plaintiffs. Hence
preserving the property by prohibitory order
will serve the ends of justice.
In view of the above
discussion,considering the pleadings,
relevant submissions,evidence placed on
record and the reasons as mentioned
hereinbefore, l pass the following order.
ORDER
The present suit is hereby allowed.
It is hereby declared that the Plaintiff is
entitled to cancel the regd.agreement dated
02.08.2010 in respect of the suit property.
It is hereby declared that the Receipt of
possession (Kabja Pavti) being unregisteredPage 35 of 50
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and insufficiently stamped is null and void.
It is hereby declared that the Plaintiffs
are in lawful possession of the disputed
property by virtue of order in
Sp.C.S.no.350/2000 and the defendants have
no right, share in the suit land. The
defendants are hereby ordered to be
restrained by way of permanent injunction
from entering upon the suit land.
The defendants are hereby ordered to be
restrained by way of permanent injunction
from either selling, transferring or
alienating the suit land by misusing the
agreement dated 02.08.2010 as well as Power
of attorney, Deed of Partnership incidental
to said agreement as well as from creating
any rights of third. parties as well as from
making any writings.
It is hereby declared that the agreement
dated 06.08.2010 executed by defendants
no.3,4 in favour of defendants no.1,2 is
illegal, malafide fraudulent as well as
ultravires and not binding to the
Plaintiffs.
It is hereby declared that the Plaintiffs
are discharged from their obligations under
agreements dated 29.04.2010 and 02.08.2010
as well as from liabilities and writings
incidental to these agreements on account of
breach committed by defendants.
The defendants are hereby ordered to be
restrained by way of permanent injunction
from obstructing the Plaintiffs in any
manner whatsoever in their possession of the
suit land.
Decree be drawn accordingly.
Pronounced in open court or this 4″ day of
July, 2012.”
26. Considering the submissions and evidence on record,
issue nos.1 to 6 have been answered in affirmative.
Issue nos.7 to 9 have been answered in negative.
The learned Judge, has in great detail discussed
issue no.1, 1A and 2 to 6, so also the agreements,
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the evidence and ultimately, as aforesaid,
concluded that defendants have colluded and have
failed to perform their part of the obligations
under the agreements dated 29.04.2010 and
02.08.2010. Besides, they have committed breach of
the provisions of two agreements by entering into
third agreement dated 06.08.2010 without the
consent, connivance and knowledge of the plaintiff.
The learned Judge was of the opinion that the
defendants have committed breach of the agreements
dated 29.04.2010, 02.08.2010, 06.08.2010 and are
not binding to the plaintiff. After in-depth
discussion, the suit came to be allowed declaring
that the plaintiff is entitled to cancel the
registered agreement dated 02.08.2010. Moreover,
the receipt of possession (Kabjapavti) being
insufficiently stamped, was declared as null and
void. Declaration was also ordered that the
plaintiffs are in lawful possession of the disputed
property by virtue of order in Civil Suit no.350 of
2000 and the defendants have no right and share in
the suit land. Defendants have been permanently
restrained from entering the land in question, so
also from alienating, transferring it by misusing
the agreement dated 02.08.2010 as well as power of
attorney, deed of partnership etc. The agreement
dated 06.08.2010 executed by the defendant nos.3
and 4 in favour of defendant nos.1 and 2 have also
been declared as illegal and mala fide and not
binding to the plaintiff. Reading of the impugned
judgment suggests that no right has been vested
either in favour of Harishchandrasinhji Jadeja and
Kalpesh Patel. In none of the paragraphs, there is
a whisper about any rights having been vested in
Harishchandrasinhji Jadeja or for that matter
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Kalpesh Patel. Considering the issue involved in
suit in question and the issues formulated and the
finding recorded, it can hardly be said that if the
withdrawal is permitted, Harishchandrasinji Jadeja
and Kalpesh Patel would be affected.
27. Besides, Civil Suit no.350 of 2000 filed by
plaintiff – Kantilal Patel against
Harishchandrasinhji Jadeja through his power of
attorney, was decreed vide judgment dated
07.02.2001, directing payment of Rs.12 lac in
addition to the payment of Rs.12 lac already made
and execution of the sale deed. It is not in
dispute that the said judgment and decree dated
07.02.2001 is subject matter of challenge in
Special Civil Suit no.53 of 2002 filed by
Harishchandrasinhji Jadeja against plaintiff –
Kantilal Patel and others. In the suit, certain
amendments were prayed for, which have been
allowed. Prayer, is sought for declaring the
judgment and decree dated 07.02.2001 as ab initio
void. Besides, in connection with the declaration
that the land in question is in possession of the
plaintiff, i.e. Harishchandrasinhji Jadeja,
permanent injunction has been prayed for from
implementing the judgment and decree dated
07.02.2001. Vide order dated 27.05.2011 below
Exh.5, the decree has been stayed till the final
disposal of the suit and the plaintiff
Harishchandrasinhji Jadeja was directed not to deal
with the land in question. The prayer in the
Special Civil Suit no.53 of 2002, is challenge to
the decree and so also seeking declaration of the
possession qua the land in question.
28. Various issues have been formulated (Exh.27). One
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of the issues, is whether the plaintiff proves that
the defendant nos.1 to 3 in collusion with each
other by committing fraud, had obtained the decree
dated 07.02.2001 in Civil Suit no.350 of 2000.
Issue no.4 is whether the plaintiff proves that the
possession of the disputed property is with the
plaintiff. Therefore, Court below is seized of the
issues, namely, legality and validity of the
judgment and decree dated 07.02.2001 and the
possession of the plaintiff of the land in
question. Following issues in vernacular and free
english translation would be thus:
(1) Whether the plaintiff proves that
the defendant nos.1 to 3 have obtained
signature of the plaintiff in the
agreement to sell dated 07.04.1993
without free consent, by coercion and
misinterpretation?
(2) Whether the plaintiff proves that
the defendant nos.1 to 3 in collusion
with each other and fraudulently has
obtained the judgment and decree dated
07.02.2001 in Civil Suit no.350 of 2000?
(3) Whether the plaintiff proves that
the power of attorney of the plaintiff
has by acceding its authority flowing
from the power of attorney has entered
into the settlement in the Special Civil
Suit no.350 of 2000?
(4) Whether the plaintiff proves that
he is in possession of the disputed
property?
(5) Whether the defendants prove that
the suit is barred by non-joinder of
parties.
(6) Whether the defendant no.1 proves
that after the judgment and decree in
the Civil Suit no.350 of 2000, the
plaintiff having accepted the
consideration, is binding?
Hence, the Court below is seized of the
grievance of Harischandrasinhji Jadeja and now the
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heirs. It is sought to be argued by Mr S.N.
Soparkar, learned Senior Counsel that the decree
dated 07.02.2001 has been obtained fraudulently and
in collusion with the power of attorney of
Harishchandrasinhji Jadeja; however, the issue of
obtaining the decree dated 07.02.2001 fraudulently
and in collusion, cannot be gone into as the same,
is being examined in Special Civil Suit no.53 of
2002. It has been reported that the suit is at the
stage of examining the witnesses and/or parties.
The scrutiny in the captioned proceeding is
restricted qua the prayer of withdrawal and not the
peripheral issues and grievances which are pending
determination before the Courts below. Perceptibly,
no right can be said to have been vested, much less
any findings in favour of Harishchandrasinhji
Jadeja, which would get nullified by withdrawal of
the suit and hence, the claim of the heirs of
Harishchandrasinhji Jadeja about right being
affected or nullified, does not deserve to be
accepted and is rejected.
29. Adverting to the claim of Kalpesh Patel,
undisputedly, the agreements or the understanding
between Kalpesh Patel and the applicant – Dolly
Patel is of the years 2018 and 2019, which are
subsequent to the passing of the restraint order by
this Court. Kalpesh Patel took the risk of
executing agreements. Except stating that there are
agreements in his favour and payment of huge sum
towards consideration, has not pointed out anything
as to how any right is vested by the judgment and
would be affected by the withdrawal. Mere payment
of huge consideration is not sufficient. One has to
point out what right is vested flowing from the
decree and how withdrawal would be prejudicial to
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him.
30. Notably, there cannot be any right vested or
findings recorded in the impugned judgment inasmuch
as, the suit is already decided in the year 2012
when Kalpesh Patel was not even in picture. The
claim of Kalpesh Patel is based on the agreements
executed in the years 2018 and 2019 which have been
revoked and the said agreements, are under
consideration in the Special Civil Suit no.41 of
2021 filed by him. It is only when the suit is
decided and Kalpesh Patel were to succeed, the
issue of his claim would arise. Since Kalpesh Patel
has been unable to point out any right, much less
any findings in his favour, other issues, namely,
registration of the document, nature of agreements,
payment made to the applicant – Dolly Patel and
prejudice caused to him etc. are not gone into.
Contention is also raised that Order XXII Rule 10
of the Code would come into picture and in view of
the assignment, the suit may be allowed to be
continued. The said contention is fallacious for,
Order XXII Rule 10 speaks about the procedure for
continuation of the suit by leave of the Court as a
result of the assignment, creation etc. during the
pendency of the suit. Also, there is no attempt put
by Kalpesh Patel seeking leave as per the
provisions of Order XXII Rule 10 of the Code.
Therefore, the said contention, does not deserve to
be accepted and is hereby rejected.
31. In the present case, if at all anybody is
benefitted, it is the plaintiff – Kantilal Patel
and the applicants, in whose favour the suit has
been allowed. The defendants, i.e. the appellants
are aggrieved and it cannot be said that by reason
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of a judgment and decree, any benefit has been
enured in their favour. At the cost of repetition,
it is required to be noted that Harishchandrasinhji
Jadeja and Kalpesh Patel have failed to point out
any right vested by way of the findings recorded in
the judgment and decree under challenge. Thus, the
Civil Applications deserve to be allowed and is
accordingly, allowed.
32. While concluding, this Court, would like to place
on record the concern about citing voluminous
judgments. The issue is withdrawal of the suit at
the appellate stage; however, some of the judgments
cited do not deal with the withdrawal of the suit
at the appellate stage, but at the stage of the
suit itself or withdrawal of the appeal at the
appellate stage. The present is the case of
withdrawal of the suit at the appellate stage and
the relevant judgments, would be only some of them
and not all, which have been dealt with and
discussed in the preceding paragraphs. It is well
recognized principle that circumstantial
flexibility, one additional or different fact may
make a world of difference between conclusions in
two cases. Observations of Courts are not to be
read as Euclid’s theorems nor as provisions of the
statute. Observations must be read in the context
in which they appear. With the advent of
technology, searching judgments is a click away and
therefore, voluminous judgments are being cited by
the parties, slightly off the issues or some
resulting into duplication thereby, burdening the
Court. While the Court is duty-bound to deal with
the same, it is necessary that prudence is
exercised while citing the judgments, bearing in
mind the Court’s time.
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33. It is noteworthy, that the suit is of the year 2012
which now is sought to be withdrawn by the
applicants. The Court below and this Court, have
invested substantial time, which has resulted in
wastage of public time, which is of considerable
importance in the present day scenario. Hence, this
Court permits the withdrawal; however, it deems it
appropriate to impose cost of Rs.50,000/- each to
be paid jointly by the applicants and the
respondents to Gujarat State Legal Services
Authority within a period of two weeks from today.
34. At this stage, it is required to be noted that this
Court, on 25.06.2018 in First Appeal no.2238 of
2012, has passed the following order:
"Heard the learned advocates
for the respective parties
This appeal together with
Letters Patent Appeals No.2111/2009
with 2004/2009 with 2108/2009 shall
be listed for final hearing on
19.07.2018.
Mr. Pratik Jasani, learned
advocate states that he had intimated
the respondent No.1.3 - Chhayaben
Kantilal Patel that he is retiring from the
matter for his personal reasons. A
copy of the letter has been placed on
record. Under the circumstances, the
respondent No.1.3 – Chhayaben Kantilal
Patel shall make necessary arrangements
before the next date of hearing
failing which, the matter(s) shall
be proceeded further ex-parte.”
35. Captioned appeals were directed to be heard with
Letters Patent Appeals which are in connection with
the land in question. Proceedings under the
provisions of the Gujarat Agricultural Lands
Ceiling Act, 1960 were subject matter of
consideration before this Court. By CAV judgment of
even date, the Letters Patent Appeal nos.2004 of
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2009 in Special Civil Application no.5174 of 1996
with Letters Patent Appeal no.2108 of 2009 in
Special Civil Application no.10235 of 1996 with
Letters Patent Appeal no.2111 of 2009 in Special
Civil Application no.13065 of 1994, have been
decided. Letters Patent Appeal no.2111 of 2009 in
Special Civil Application no.13065 of 1994 filed by
the State Government has been allowed, while
Letters Patent Appeal no.2108 of 2009 in Special
Civil Application no.10235 of 1996, has been
dismissed, while Letters Patent Appeal no.2111 of
2009 in Special Civil Application no.10235 of 1996,
has been disposed of accordingly.”
14. It is found out from the above decision, the
Coordinate Bench of this Hon’ble Court has also
considered the provision of Order XXIII Rule 1 of
the Code of Civil Procedure, which deals with the
withdrawal of suits. The said provision allows a
plaintiff to withdraw a suit or abandon a part of
their claim. However, if they withdraw without the
court’s permission to file a fresh suit on the
same cause of action, they are barred from
instituting any fresh suit on the same subject
matter. I have also considered the affidavits
filed in each matter along with the compromise
deed arrived at between the parties and having
considered the same, I am satisfied that the
compromise between the parties as contained in the
captioned application satisfies the requirements
of Order XXIII Rule 3 of CPC. The compromise
contained in the captioned application is lawful,
and therefore, I do not find any impediment in
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disposing of the underlying revenue proceedings in
terms of the aforesaid settlement.
15. At this stage, I would like to reproduce the
affidavit filed in one of the matters being
Special Civil Application No.10476 of 2008 as the
contents of all affidavits are verbatim same,
which reads as under,
“1. That I am the respondent no.1.2 in the above-
numbered petitions, being one of the legal heirs
and representatives of the original respondent
Chandulal Narottamdas Surti. That all the other
legal heirs and representatives have given me a
power of attorney to act on their behalf with
respect to the land in question and the afore-
numbered petitions, hence I am competent and
authorized to file this affidavit in my
individual capacity as well on their behalf. A
copy of the power of attorney given to me by all
the legal heirs and representatives is marked and
annexed as ANNEXURE-R/1.
2. That during the pendency of the petitions the
mother of the present respondent who was the
respondent no.1.1 expired on 25.12.2025 however
all her legal heirs and representatives are
already on record in all the petitions as legal
heirs and representatives of their deceased
father Chandulal Narottamdas Surti. Hence, a note
of the same may kindly be made by this Hon’ble
Court. A copy of the death certificate of
respondent no.1.1 is marked and annexed as
ANNEXURE-R/2.
3. That the petitioners and the respondents have
amicably settled their issues and have executed a
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Settlement agreement to that effect. A copy of
the said settlement agreement is marked and
annexed as ANNEXURE-R/3.
4. That in view of the settlement agreement, in the
Special Civil Application No.10478/2008, which
arises from the claim of tenancy advanced by the
predecessor of the respondents Shri Chandulal
Narottamdas Surti by initiating proceedings under
Section 70B of the Gujarat Tenancy and
Agricultural Lands Act, 1948 being Tenancy
application no. 997/1979, the respondents in
consideration of receiving the compromise amount
withdraw the original application preferred under
Section 70 B of the Tenancy Act and withdraw the
assertion that the Chandulal Narottamdas Surti
was tenant in property in question. Since the
original application asserting tenancy is
withdrawn, the said Special Civil application No.
10478/2008 has become infructuous and thus is
prayed to be disposed of accordingly.
5. That in view of the settlement agreement, in the
Special Civil Application No.10479/2008 which
arises from an application number 17/2001 filed
by the predecessor of the respondents Shri
Chandulal Surti under Section 84 of the Gujarat
Tenancy and Agricultural Lands Act, 1948 to
summarily evict the petitioners from the property
in question whereby upon dismissal of the
eviction application Shri Chandulal Surti had
filed Revision no.110/2003 before The Gujarat
Revenue Tribunal and The Ld.Revenue Tribunal was
pleased to allow the said revision application
which order has been challenged in the petition,
such original application under Section 84 and
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the revision no 110/2003 are withdrawn hereby by
the respondents thereby not pressing for summary
eviction of the petitioner making the said
Special Civil Application no.10479/2008
infructuous and the same is liable to be disposed
of accordingly.
6. That in view of the settlement agreement, in the
Special Civil Application No. 10477/2008 wherein
the order of the Gujarat Revenue Tribunal passed
in Tenancy Application no.129/2003 quashing and
setting aside the Deputy Collector’s order dated
21.4.1984 granting permission to the Petitioner
to purchase the land in question under Section 63
of the Gujarat Tenancy and Agricultural Lands
Act, 1948, has been challenged, the present
respondents hereby withdraw the Application no.
129/2003, thereby giving up the challenge to the
permission granted on 19/4/1984. Since Tenancy
Application No. 129/2003 is withdrawn, the
present petition has become infructuous and is
required to be disposed accordingly.
7. That in view of the settlement agreement, in
Special Civil Application No. 10476/2008 vide
which the order of the Gujarat Revenue Tribunal
passed in AS/5/2005 quashing and setting aside
the permission dated 2.6.1984 granted by the
Charity commissioner under section 36 of the
Bombay Public Trust Act to the original owner
Shantiniketan Trust (Respondent No.2) has been
challenged, the respondents hereby withdraw the
AS/5/2003 filed by their predecessor Chandulal
Surti thereby making the said petition
infructuous and to be disposed of accordingly.
8. That as the petitioner and respondents have
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resolved the issues amicably in terms of the
settlement agreement the same may be taken on
record and an appropriate order recording the
said settlement and in view of the said
settlement kindly be passed in the interest of
justice.”
16. In view of the above affidavit filed by Dineshbhai
Chandulal Narottamdas Surti, the respondent no.2
herein, it is clear that amicable settlement has
been arrived at by and between the parties and
they do not wish to proceed with the present
petition and want to put an end to it. Further by
the said affidavit, they have stated in a very
categorical terms that they want to withdrawn the
main revenue proceedings, which is the resultant
effect of other revenue proceedings, which has
reached upto this Court by filing above four writ
petitions. Therefore in view of the above decision
of the Coordinate Bench of this Hon’ble Court,
upon which reliance has been placed by learned
advocates appearing for the parties and in view of
the provision of the Order XXIII, Rule 11 of the
Civil Procedure Code, such withdrawal is
permissible. Therefore without entering into
merits or de-merits of the matter, I am inclined
to consider the case of the parties on the basis
of the settlement arrived at by them.
17. Thus in view of the above facts of the case, the
respondent no.1, Chandubhai Surti and/or his heirs
(either brought on record or not) is hereby
permitted to withdraw (1) the proceeding being
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AS/5/2003 filed before the Hon’ble Gujarat Revenue
Tribunal challenging the order dated 02.06.1984
passed by the learned Joint Charity Commissioner
granting permission under Section 36 of the Bombay
Public Trust Act, 1950 thereby giving up the
challenge to the permission granted by the Charity
Commissioner; (2) the proceeding being Revision
Application No.129/2003 filed before the Hon’ble
Gujarat Revenue Tribunal thereby giving up the
challenge to the permission granted by the learned
Deputy Collector to the petitioner herein – Trust
by an order dated 19.04.1984 under Section 63 of
the Bombay Tenancy & Agricultural Lands Act, 1948;
(3) the proceeding being Tenancy Case No.997 of
1979 filed under Section 70B of the Bombay Tenancy
& Agricultural Lands Act, 1948 thereby withdraw
the assertion that the Chandulal Surti is a
tenant; and (4) the proceeding being Application
No.17/2001 filed under Section 84 of the Bombay
Tenancy & Agricultural Lands Act, 1948 for summary
eviction before the learned Deputy Collector.
Further in view of the withdrawal of all above
proceedings, since the basis of the challenge to
the permission granted to the petitioner – Trust
under Section 36 of the Bombay Public Trust Act,
1950 as well as the permission granted to the
petitioner – Trust under Section 63 of the Bombay
Tenancy & Agricultural Lands Act, 1948 is based
upon the assertion that Chandulal Surti was ever
the tenant, the orders dated 17.06.2008 passed by
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the Hon’ble Gujarat Revenue Tribunal, Ahmedabad in
the proceedings filed before it are permitted to
be withdrawn unconditionally and and do not
survive and other proceedings arising from the
assertion that Chandulal Surti was the tenant do
not survive and become non-est. It is clarified
that at the time of filing writ petitions,
Chandulal Narottam Surti was joined as party
respondent no.1, however on his sad demise, his
heirs were brought on record by an order dated
08.09.2014, out of which, wife of said Chandulal
Surti i.e. the respondent no.1.1 has expired.
18. In view of the above, all four writ petitions are
accordingly disposed of in terms of the settlement
arrived at by and between the parties. Rule is
discharged.
19. Connected Civil Applications also stand disposed
of.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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