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LPA/1978/2007 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1978 of 2007
In
CIVIL
APPLICATION No. 7560 of 2003
In
FIRST
APPEAL (STAMP NUMBER) No. 2733 of 2003
=========================================================
DASHRATHBHAI
HIRABHAI RABARI - Appellant(s)
Versus
KAMDHENU
OWNERS ASSOCIATION & 1 - Respondent(s)
=========================================================
Appearance
:
MR
KV SHELAT for
Appellant
MR VIBHUTI NANAVATI for Respondent(s) : 1
MR MB
GANDHI for MR CHINMAY M GANDHI for Respondent(s) :
2
=========================================================
HONOURABLE
MS. JUSTICE R.M. DOSHIT
CORAM
:
and
HONOURABLE
MR. JUSTICE K.M. THAKER 14th October, 2008
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M. DOSHIT)
This
Appeal preferred under clause 15 of the Letters Patent arises from
the order dated 28th April, 2006 made by the learned
Single Judge in above Civil Application No. 7560 of 2003.
The
applicant made above Civil Application No. 7560 of 2003 for leave to
appeal against the judgment and order dated 30th July,
2003 passed by the learned City Civil Judge in Civil Suit No. 5934 of
1996. According to the applicant, the decree passed in Civil Suit No.
5934 of 1996 adversely affects his right, title and interest in suit
Shop No. 225, situated at Kamdhenu A.C Market, Panchkuva, Ahmedabad.
The appellant, therefore, be permitted to file appeal against the
said judgment.
The
application was contested by the respondent no.1-the plaintiff
in the suit. According to the respondent no.1, the suit shop no. 225
is in possession of the respondent no.1. The interest claimed by the
applicant is sham and bogus. The applicant is acting in collusion
with the respondent no.2-the defendant. The learned Single Judge has
dismissed the application. According to the learned Single Judge, if
the applicant had any interest in the suit-shop no. 225, he would not
have set quiet for such a long time and would have initiated action
against the respondent no.1, plaintiff for trespass. Therefore, the
present Appeal.
Mr.
Shelat has relied upon the impugned judgment passed by the
learned City Civil Judge to point out that the title and possession
of the shop no. 225 is at stake. To prove his possession and
interest, he has relied upon the possession agreement allegedly
executed on 21st October, 1996.
Mr.
Nanavati has appeared for the respondent no. 1 and has contested the
Appeal. He has questioned the genuineness of the aforesaid possession
agreement dated 21st October, 1996. He has submitted that
in the suit, the respondent no.2-defendant had produced an agreement
for sale executed in the year 2001. This itself proves collusion
between the applicant and the respondent no.2.
We
have considered the rival contentions raised before us. It is
indisputable that the title and possession of suit shop no. 225 is
at stake. Prima facie, the applicant has shown his
right/interest in the suit shop no. 225. Whether the claim made by
the applicant is genuine or not can be decided in a substantive
proceeding and not in the present Application.
For
the aforesaid reason, the Appeal is allowed. The impugned
order dated 28th April, 2006 made by the learned Single
Judge is quashed and set-aside. Civil Application No. 7560 of
2003 for leave to appeal filed by the appellant is allowed. The
appellant is permitted to prefer appeal against the judgment and
decree dated 30th July, 2003 passed by the learned City
Civil Judge in Civil Suit No. 5934 of 1996.
The parties
will bear their own cost.
{Miss R.M
Doshit, J.}
{K.M Thaker,
J.}
Prakash*
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