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SCA/5757/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5757 of 2011
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RAMJIBHAI
JESANGBHAI DIPANKER HEIRS OF DECD. JESANGBHAI - Petitioner(s)
Versus
KALIDAS
MULJIBHAI PARMAR & 5 - Respondent(s)
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Appearance :
MR
SUTHAR for MR NK MAJMUDAR for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
6.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 02/05/2011
ORAL
ORDER
1. By
way of this petition under Article 227 of the Constitution of India
the petitioner-original plaintiff has prayed for an appropriate writ,
order or direction quashing and setting aside the impugned judgment
and order passed by the learned Additional District Judge, Kheda at
Nadiad dated 18/03/2010 in Miscellaneous Civil Appeal No. 11/2008 as
well as the order passed by the learned trial Court below Exh. 5
dated 30/12/2006 in Regular Civil Suit No. 6/2006.
2. The
petitioner herein has instituted Regular Civil Suit No. 6/2006 in the
Court of learned Civil Judge (Junior Division), Kheda against the
defendants for declaration and permanent injunction as well as with
respect to the sale deed in favour of original defendant no. 6
claiming some right on the basis of some writing alleged to be
agreement to sell executed in the year 1988. It is to be noted that
at the relevant time when the agreement to sell was alleged to have
been executed in the year 1988 admittedly the land in question was
restricted New Tenure land and the same could not have been
transferred without prior permission of the appropriate authority and
without making the payment of premium. It appears that subsequently
in the year 2002 the original owners i.e. original defendants nos. 1
to 5 submitted an application before appropriate authority for
converting the land from New Tenure to Old Tenure and removing the
restriction under Section 43 of the Bombay Tenancy Act and on payment
of premium the same was converted from New Tenure to Old Tenure and
thereafter, after a period of four years original defendants nos. 1
to 5 have sold the said land in question in favour of original
defendant no. 6 by registered sale deed. It is to be noted that the
petitioner is claiming the right on the basis of the alleged
agreement to sell of the year 1988 against which original defendant
no. 6 is having valid title on the basis of the registered sale deed
executed by the original land owners. The petitioner has now and at
present prayed for injunction against original defendants no. 6, who
is having right, title and interest on the basis of the registered
sale deed executed by the original owners. It is to be noted that as
such there are no allegation against original defendant no. 6 that
the sale deed is in favour of original defendant no. 6 is collusive,
malafide and/or to defraud the rights of the
petitioner-original plaintiff.
3. In
the backdrop of the aforesaid facts and circumstances of the case,
prayer for injunction against original defendant no. 6 is required to
be considered. When original defendant no. 6 is having a valid
right, title or interest in his favour on the basis of the registered
sale deed executed by the original land owners, who has paid the full
sale consideration, no injunction can be granted against him and in a
suit filed by the petitioner-original plaintiff, who is claiming the
right solely on the basis of the agreement to sell alleged to have
been executed in the year 1988. At the most the petitioner-original
plaintiff may claim the damages and that to against the original
owners i.e. defendants nos. 1 to 5. Under the circumstances, both
the Courts below have rightly refused to grant injunction in favour
of the petitioner-original plaintiff. There are concurrent findings
of fact given by both the Courts below with respect to possession.
In any case, considering the aforesaid facts and circumstances of the
case, no illegality has been committed by the both the Courts below
in refusing to grant injunction in favour of the petitioner, which
calls for the interference of this Court in exercise of powers under
Article 227 of the Constitution of India.
4. In
view of the above, the present petition fails and the same deserves
to be dismissed and is accordingly dismissed.
(M.R.
SHAH, J.)
siji
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