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SCA/11795/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11795 of 2008
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VIKRAM
THARMAR MUTHIAH & 2 - Petitioner(s)
Versus
SHABBIR
HUSEIN PIRBHAI MOMIN & 1 - Respondent(s)
=========================================================
Appearance :
MR
SHIRISH JOSHI for Petitioner(s) : 1 - 3.
MR DHIRENDRA MEHTA for
Respondent(s) : 1,
None for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 23/09/2008
ORAL
ORDER
Petitioners
are the original plaintiffs. In the present petition they have
challenged the order dated 4th September, 2008 passed by
the appellate Court by which the learned Judge was pleased to
confirm the order dated 25.3.2008 passed by the trial Court below
Exh.5 in Civil Suit No.31 of 2006 filed by the present petitioners.
The
entire dispute relates to a portion of immovable property which the
petitioners claim to have purchased from the erstwhile owner. The
father of the petitioners had purchased the said property from one
Thakorebhai Laxmanbhai by registered sale-deed. It is the case of
the petitioners that present respondents-original defendants are
trying to put up construction illegally over the portion of the said
land. The petitioners, therefore, approached the Civil Court seeking
declaration and permanent injunction. Along with the suit, they also
sought interim protection through application Exh.5 which, however,
came to be turned down by the learned trial Judge by an order dated
20th June, 2008. Appeal being Misc. Civil Appeal No.71 of
2008 also came to be dismissed by the appellate Court, as noted
above. The petitioners are, therefore, before this Court in the
present petition.
Having
heard the learned advocate Shri Joshi for the petitioners and the
learned advocate Shri Dhirendra Mehta for the respondents appearing
on Caveat and having perused the documents on record, I do not see
any reason to interfere in the impugned orders in exercise of writ
jurisdiction.
Two
Courts below have concurrently come to factual conclusion,
prima-facie, with respect to the title of the petitioners over the
disputed portion of the land. The conclusion is not shown to have
been perverse. Though the learned advocate Shri Joshi for the
petitioners vehemently submitted that the Courts below erred in not
appreciating all the documents on record in prima-facie coming to
the conclusion that the disputed portion of the suit land was not of
the ownership of the petitioners, I find that the trial Court has
given elaborate reasons
for coming to such a conclusion and, in particular, the learned
Judge has noticed the discrepancy between the boundaries of the
property indicated in the sale-deed. Through Will the father of the
petitioners purchased the same from the erstwhile owner Thakorebhai
Laxmanbhai and under the Will the said property was bequeathed to
Thakorebhai Laxmanbhai by his mother. The learned Judge also relied
on the statement said to have been made
by father of the petitioner made before the City Survey Officer. One
of the aspects therein was regarding the exact year of the land
purchased and the learned Judge relying on these factors found that
the petitioners had not purchased portion of the suit land from the
father of the petitioner since such portion would not have come to
him under the will.
At
this stage, it is not possible even to turn the findings. Under the
circumstances the petition is dismissed.
It
is, however, clarified that the above observations as well as those
made in the impugned orders by the Courts below are purely
prima-facie in nature and are meant to deal with at the interim
stage of the suit. Such observations will not come in way of either
side in pursuing the contentions in the pending suit. It is further
directed that the construction which the respondents may have put up
on the disputed portion of the land and which they may put hereafter
during the pendency of the suit, shall be subject to further orders
that may be passed in the said proceedings. The respondents-original
defendants shall not claim any equity on the basis of having
put up such construction and ultimately, if issues are
decided against them they shall remove the construction at their own
cost.
With these
directions, the petition is disposed of.
(AKIL
KURESHI, J.)
ashish//
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