Dhirubhai Trikambhai Bhalu and Others vs State of Gujarat and Another

S.R. Brahmbhatt, J.—Heard learned advocate for the Petitioners. None is present for the Respondents.

The Petitioners, by way of this petition under Article 227 of the Constitution, have challenged the order dated 28.12.2006 passed by the learned 3rd Additional Senior Civil Judge, Amreli below Exh. 85 -an application made in Land Reference Case No. 171 of 1999, whereby, the learned Senior Civil Judge allowed the Applicant of that application to be joined as a party Respondent, who alleged to have been heirs of Defendant No. 2in the said application.

This Court (Coram: Ravi R. Tripathi, J.) on17.4.2007 while issuing Rule, passed the following order:

Notice issued by this Court is served by direct service to Respondent Nos. 2/1 to2/5-the main contesting Respondents. Learned Assistant Government Pleader Mr. Maulik Nanavati appears for Respondent No. 1. Rule returnable on 14.06.2007. Ad-interimrelief granted earlier to continue till then. Direct service is permitted.

Facts in brief deserve to be set out as under:

The deceased Jiviben Harjibhai had 29 acres and13 guntha of land bearing Survey No. 62 mouje Giriya, Tal.& District: Amreli. The land was being cultivated by Naranbhai Ramjibhai as state din the petition and after his death, his heirs Trikambhai Naranbhai and others were cultivatingland and were tenants of the land. The tillers were entitled to have the land u/s 32 of the Tenancy Act. The appropriate proceedings u/s 32G of the Tenancy Act being Tenancy Case No. 29 of 1982 were undertaken and the price was paid to the original owner of the land when she was alive. The said Jiviben passedaway on 24.11.1999. At that time also, the land was cultivated by Trikambhai Naranbhai and his family members. Thereafter 57 gunthas of the land was sought to be acquired and accordingly Land Reference Case was filed. The Respondent No. 2claimed to be the heir of deceased Jiviben, the amount of compensation determined as atRs.1,09,816/-was not paid and case referred to the District Court for a decision as to entitlement of the compensation. The original Respondent No. 2, who have been joined as Petitioners through his heirs and those, who are Applicants in the Reference Court, filed an application Ex. 9 claiming to be the executor of the Will of deceased Jiviben and as such in said capacity. Vijay kumar Haridas Sampat was in fact required to be on the record as he was executor of the Will of deceased Jiviben but the same right could not inhered by the heirs of said Vijay kumar Haridas Sampat, however, heirs filed an application, which came to be allowed by the Reference Court vide order dated 28.12.2006, which is impugned in this petition under Article 227 of the Constitution of India.

This Court heard the matter on 2.12.2010 but as learned Counsel for the Respondent No. 2 was not present, it was ordered to be adjourned to3.12.2010. Today also, the matter was called out twice, none appeared for Respondent No. 2. Therefore, Court has proceeded with the disposing of the matter in absence of the counsel.

The contention raised by the Petitioners have remained un controverted. Fact remains to be noted that the executor of the Will of deceased Jiviben would not pass on any right to execute the Will to only his legal heirs. On the strength of the probate given to him, his heirs would not been titled to inhere any right there under and there fore, they could not have been legally entitled to be joined in the proceeding. In my view, therefore, the order passed by Reference Court being not in accordance with law, deserves to be quashed and set aside. The petition, therefore, is allowed. The trial Court may proceed with the Reference. The trial Court may accordingly make order of deleting those heirs from the record as the order passed on the application is quashed and set aside. Rule is made absolute. No costs.