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SCA/7426/2008 6/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7426 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge?
=========================================================
ASHOKBHAI
CHOTABHAI PATEL P O A HOLDER OF SEJALBEN & 1 - Petitioner(s)
Versus
RANCHODBHAI
VIHABHAI BHARWARD & 1 - Respondent(s)
=========================================================
Appearance :
MR
NIKHIL S KARIEL for Petitioner(s) : 1 - 2.
MR
HM PARIKH for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 04/08/2008
ORAL
JUDGMENT
1. Rule.
Mr.H.M.Parikh, learned Advocate waives service of notice of Rule on
behalf of the respondents. With the consent of the learned Advocates
appearing on behalf of the respective parties, the petition is taken
up for final hearing today.
2. By
way of this petition, the petitioners ? original defendants have
prayed for an appropriate Writ, order to quash and setting aside the
impugned order dated 29.04.2008 passed by the learned Additional
District Judge & Presiding Officer, Fast Track Court No.4, Anand
in Civil Misc.Appeal No.32 of 2008 by which the learned Appellate
Court has allowed the said Appeal by quashing and setting aside the
order dated 27.03.2008 passed by the learned trial Court below Exh.5
in Regular Civil Suit No.22 of 2008.
3. Respondents
? herein ? original plaintiffs had instituted Regular Civil Suit
No.22 of 2008 in the Court of learned Civil Court, Khambhat for
perpetual injunction restraining the defendants and their servants or
agents from entering into suit property and disturbing the possession
of the plaintiffs. As per the plaintiffs they were the tenant of the
predecessor ? in ? title of the present petitioners ? original
plaintiffs and they were running the hotel which is disputed property
in the name of Saraswaty Hotel since year 2002 and they have been
paying consideration to the tune of Rs.3000/- per year to the said
predecessor-in-title. In the said suit the plaintiffs submitted
application for interim injunction Exh.5 praying for injunction
restraining the defendants from disturbing the possession of the
plaintiffs. The learned trial Court initially granted order of
status-quo, however, subsequently after hearing the learned
Advocates for the parties, the learned trial Court vide order
dated 27th March, 2008 dismissed application Exh.5. Being
aggrieved and dissatisfied with the order passed by the learned trial
Court below Exh.5 dismissing the application for interim injunction,
the respondents herein ? original plaintiffs preferred Civil
Misc.Appeal No.32 of 2008, which came to be heard, decided and
disposed of by the learned Additional District Judge and Presiding
Officer, Fast Track Court No.4, Anand who by impugned judgment and
order dated 29.04.2008 partly allowed the said appeal by quashing and
setting aside the order passed by the learned trial Court passed
below Exh.5 by directing both the parties to maintain status-quo
with respect to disputed property. Being and dissatisfied with the
order passed by the learned Appellate Court dated 29.04.2008 passed
in Civil Misc.Appeal No.32 of 2008, the petitioners ? original
defendants have preferred the present Special Civil Application under
Article 227 of the Constitution of India.
4. Mr.Nikhil
Kariel, learned Advocate for the petitioners ? original defendants
has submitted that the petitioners herein ? Sejalben Rameshbhai
Halia and Rakesh Ramanbhai Patel are joint owners of the disputed
property and said property has been purchased by the petitioners from
one Mrs.Girija Babulal Nair by registered sale deed dated 27.02.2004
and said Mrs.Girija Babulal Nair had purchased the said property from
one Bharatsinh Amarsinh Chavda by registered sale deed dated
24.07.2002. It is submitted that present dispute is with respect to
plot of two vighas where a hotel is situated. It is submitted that
respondents herein claimed to be in possession of the disputed land
as tenant of Mrs.Girija Babulal Nair, however, no documentary
evidence and/or other evidence has been produced by them in support
of their tenancy rights. It is submitted that original plaintiffs are
head strong persons who had forcible entered into the hotel and were
trying to extract some benefit from the petitioners. It is submitted
that said two properties had been leased out by the petitioners after
they had purchased the property from one Bhupatbhai Laxmandas
Parsania vide agreement dated 22.12.2005. Said Bhupatbhai
Laxmandas Parsania was running hotel in the name of Shiv Krupa Hotel
and later on the said property was leased to one Vinodbhai Gagjibhai
Bharward who had started running the hotel in the name of Saraswaty
hotel and vide notice dated 06.11.2006 Sub-Divisional
Magistrate, Petlad had called upon said Vinodbhai Gagjibhai Bharwad
to produce any license to run the hotel under the Bombay Police Act.
It was further pointed out that since said hotel was being run
without any license by said Vinodbhai Gagjibhai Bharward, Sub
Divisional Magistrate vide order dated 14.11.2006 directed to
close down the hotel. It is submitted that disputed property was not
in possession, occupation of the present respondents at all and in
view of the above respondents could not have been in possession of
the hotel during that period and therefore, their contention that
they were continuously in occupation of the hotel from 2002 onwards
is prima-facie proved to be false. It is submitted therefore,
the Appellate Court has materially erred in directing both the
parties to maintain status-quo. It is submitted that by
aforesaid order it is likely to further complicate the matter and
even further complication. It is submitted that on appreciation of
evidence the learned trial Court rejected the application Exh.5 which
was not required to be interfered with by the learned Appellate
Court. Therefore, it is requested to allow present Special Civil
Application and quash and set aside the order passed by the learned
Appellate Court and to restore the order passed by the learned trial
Court passed below Exh.5.
5. The
petition is opposed by Mr.H.M.Parikh, learned Advocate for the
respondents ? original plaintiffs. It is submitted that when the
respondents ? original plaintiffs are in possession of suit land /
hotel in question and prima-facie believing the same when the
learned Appellate Court has partly allowed the appeal by directing
both the parties to maintain status-quo, it cannot be said
that the learned Appellate Court has committed any error which calls
for interference of this Court in exercise of powers under Article
227 of the Constitution of India. Therefore, it is requested to
dismiss the present Special Civil Application.
6. Heard
the learned Advocates appearing on behalf of the respective parties.
7. At
the outset it is to be noted that the petitioners- original
defendants are owners of the land in question. The respondents ?
original plaintiffs claim to be in possession of the suit land as
tenant of predecessor -in -title of Mrs.Girijaben Nair since 2002.
However, the plaintiffs have miserably failed to produce any
supporting evidence to that effect. Not a single document has been
produced in support of the tenancy rights of the plaintiffs. Even it
is the case of the plaintiffs that they were running hotel; they must
be having valid license under the Bombay Police Act which is not
produced by the plaintiffs. On the contrary it has come on record
that even proceedings were initiated by the Sub-Divisional Magistrate
in the year 2006 against one Vinodbhai Gagjibhai Bharwad and order
came to be passed by the Sub-Divisional Magistrate directing him to
close down the hotel as he was not having license. Under the
circumstances case on behalf of the plaintiffs that they are in
possession of the disputed land and running hotel since 2002 cannot
be believed. Even on the basis of Panchnama it is not borne
out that the plaintiffs are in possession of the disputed land as
sought to be contended on behalf of the respondents ? original
plaintiffs. Under the circumstances when the respondents ? original
plaintiffs have failed to establish their possession and/or under
what right they claim to be in possession of the land in question
and/or they have failed to produce any evidence in support of their
claim as a tenant, the learned Appellate Court has materially erred
in directing both the parties to maintain status-quo and
interfering with the order passed by the learned Trial Court below
Exh.5. Under the circumstances, impugned order passed by the learned
Appellate Court deserves to be quashed and the order passed by the
learned trial Court passed below Exh.5 deserves to be restored.
8. For
the reasons stated above, the petition succeeds. The impugned order
dated 29.04.2008 passed by the learned Additional District Judge &
Presiding Officer, Fast Track Court No.4, Anand in Civil Misc.Appeal
No.32 of 2008 is hereby quashed and set aside and the order dated
27.03.2008 passed by the learned trial Court below Exh.5 in Regular
Civil Suit No.22 of 2008 is hereby restored. Rule is made absolute to
the aforesaid extent. However, there shall be no order as to costs.
[M.R.Shah,J.]
satish
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