SUDHAKAR SHANTILAL MODIA Vs. S S PANDVI

JUDGEMENT

(1.) This is one of the grossest cases of misuse of power and authority at the instance of respondent no.1 in passing the impugned order dated 10.09.2014, and misuse and abuse of process of law by the respondent nos.3 to 8 in initiating proceedings in the Revenue Court for entering their names in revenue record as the legal heirs of the original tenants, though the predecessors of the said respondents had already lost all the legal proceedings upto the Supreme Court.

(2.) Though the case has a checkered history, the facts necessary for the purpose of deciding the present petition are that one Modia Mansukhlal Raiji, the original owner of the land bearing Survey No.533 sold out the said land to Chhotalal Mansukhlal and Punamchand Shivlal Modhia on 25.02.39. The sale price was not paid at the time of sale. It appears that Mr. Punamchand Shivlal Modhia thereafter paid the full price, and he sold the land to Nayak Mansingji Mokamsingji. The original owner Mansukhlal died leaving behind his daughter Bai Punji as his legal heir. The said Bai Punji instituted a suit against Chhotalal, one of the purchasers from her father, for the unpaid sale price. Chhotalal also instituted suit being No.2/42 for possession of land comprised in Survey No.533 against Bai Punji, Mansukhlal Raiji, Nayak Mansingji, Punamchand, and the tenants who were in actual possession of the said land. The said tenants were arraigned as defendant nos. 4 to 15 in the said suit, including the predecessor of the present respondent nos. 3 to 8 i.e. Hussainbhai Nabibux Kunjda. The said suit being No.2/42 filed by Chhotalal was decreed on 10.08.43, in which it was declared that the said Chhotalal and Punamchand were entitled to recover the possession of the land. Being aggrieved by the said decree, Bai Punji and Nayak Mansingji filed two separate Appeals being Nos.310 of 1943 and 317 of 1943. No Appeal was filed by the predecessor of the respondent nos. 3 to 8 herein. The High Court modified the said decree by directing that the possession of half of the land should be given to Chhotalal on payment of Rs.5000/ to Bai Punji. On 22.04.1943, Chhotalal applied for execution of the decree and the court directed the Collector to partition the property. Since the Collector had delivered symbolic possession to Chhotalal, he applied for delivery of actual possession. The Court, without passing any formal order, wrote letter to the Collector asking him to deliver actual possession to Chhotalal. On the matter being taken to the High Court, the High Court vide the order dated 17.07.57 directed the court to pass appropriate order after hearing the parties. In the said proceedings the tenants claiming through Mansukhlal filed their reply. However, the court on 20.03.58, passed an order directing actual possession to be delivered to Chhotalal. The said order having been challenged in the High Court, by preferring an Appeal by Hussain bhai Nabibux Kunjda, predecessor of the respondent no.3 Banuben herein, the same was dismissed and Letters Patent Appeal against the said order was also dismissed. Civil Appeal being No.316 of 1970 was preferred in the supreme court by the said Hussainbhai against the said judgment.

(3.) In the meantime, the said Hussainbhai and others instituted a Suit being No.8 of 1967 against Chhotalal for declaration that they had become the owners of the said land under Section 32 of the Bombay Tenant and Agricultural Lands Act, 1947 (hereinafter referred to as "the Tenancy Act") and for permanent injunction restraining the said Chhotalal from taking possession of the said land from the said plaintiffs, pursuant to the decree passed in the Suit No.2/42, on the ground that the said decree was a nullity as the said plaintiffs had acquired protected tenancy rights in the suit land under the Tenancy Act. In the said suit, it was held interalia that the decree passed in Suit No.2/42 was not nullity and that the plaintiffs of the said suit had failed to prove that they were holding or cultivating the suit land personally. Being aggrieved by the said decree passed in the said suit, an Appeal was preferred by the said plaintiffs Hussainbhai and others, which came to be dismissed by the High Court in limine on 26.03.69. The said Hussainbhai and others, therefore, had filed Civil Appeal No.317 of 1970 before the Supreme Court.