Loyola Education Society vs Chandulal Narottam Surti on 19 February, 2026

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    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 is

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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; but

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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 the

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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 Court

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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 the

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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 the

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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 authorised

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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 his

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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 the

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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.No

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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 establish

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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 the

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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 the

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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 no

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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 dated

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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 unregistered

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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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