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AO/70/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 70 of 2011
With
CIVIL
APPLICATION No. 2390 of 2011
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CHIMANBHAI
MAFATLAL RATHOD & 2 - Appellant(s)
Versus
YOGESH
AMARSING RATHOD & 2 - Respondent(s)
=========================================================
Appearance :
MR
DHIRAJ M PATEL for
Appellant(s) : 1 - 3.
MR PR NANAVATI for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 21/03/2011
ORAL
ORDER
1. By
way of this appeal, the appellants have prayed to quash and set aside
the impugned order dated 31.01.2011 passed by the learned Chamber
Judge, City Civil Court, Ahmedabad below applications Exhibit-6-7
Notice of Motion filed in Civil Suit No. 1520/2010, whereby the said
application was rejected.
2. The
facts in brief are that deceased Mafatlal Nanjibhai Rathod, father of
the appellants-original plaintiffs and grandfather of respondents
nos. 1 and 2-original defendant nos. 1 and2 had purhased an
agricultural land situated in the sim of Ghodasar, District :
Ahmedabad, bearing Survey No. 309 admeasuring 12141 sq. mtrs. On
25.07.1972, deceased Mafatlal executed a registered will and as per
the said will 300 sq.yrds of land was bequeathed to late Amarsing and
rest of the land was bequeathed equally to the appellants-original
plaintiffs. Thereafter, by way of agreement dated 10.04.1977, late
Amarsing was given additional 2500 sq.yards of land. Late Amarsing
out of 2800 sq. yards of land, utilized 1696 sq. yards, by
transferring it to three different parties and by constructing
residential premises. On introduction of Draft TP scheme, land
bearing survey no. 309 was reconstituted and Final Plot no, 42 was
allotted, admeasuring 5750 sq mtrs. In Final Plot No. 42, late
Amarsing was entitled to 1798 sq.mtrs of land and the
appellants-original plaintiffs were entitled to 3429 sq. mts. Out of
the land admeasuring 3429 sq.mts, the appellants-original plaintiffs
sold 2214 sq. mtrs to Badrinath Society and 552 sq.mtrs to one
Babubhai Prajapati. Now the appellants-original plaintiffs were in
possession of 667 sq mtrs, of land. However, respondent nos. 1 and
2-original defendants being the heirs of deceased Amarsing were in
possession of 1798 sq.mtrs.
2.1. It
is the case of the appellants-original plaintiffs that when they
obtained Village Form No. 7/12, they came to know that respondent
nos. 1 and 2 have sold land admeasuring 547 sq. yards (457 sq.
mtrs.) to respondent no. 3, vide registered sale deed dated
19.02.2010, thereby attaching photographs of 667 sq.mtrs. land. Being
agrieved by the said action, the appellants-original plaintiffs had
preferred Civil Suit No. 1520 of 2010 praying for declaration and
permanent injunction. Along with the said suit, the
appellants-original plaintiffs preferred interim application
Exhibi-6-7 Notice of Motion before the Court of learned City Civil
Court, Ahmedabad. The trial Court after hearing the parties vide
order dated 31.01.2011 rejected the said application. Hence, this
appeal.
3. Heard
learned counsel for the respective parties and perused the documents
on record. It is recorded that the appellants-original plaintiffs and
respondents nos. 1 and 2-original defendants nos. 1 and 2 are family
members and that the father of the appellants-original plaintiffs had
by registered Will dated 25.07.1972 gave 300 sq. yards of land
bearing Survey No. 309 to Amarsing-father of respondents nos. 1 and
2-original defendants nos. 1 and 2 and the remaining land was equally
distribued between the appellants-original plaintiffs. Thereafter
through family settlement, Amarsing became the owner of 2800 sq.
yards of land. The said fact is supported by the document produced at
Mark-29/3 before the trial Court. However, on finalization of the TP
scheme, survey no. 309 was converted into Final Plot No. 42,
Amarsingh-father of respondents nos. 1 and 2 was alloted 1798 sq.
mtrs of land and 675.54 sq. mtrs of land had gone into road line. The
remaining portion of land was given to the appellants-original
plaintiffs. From the record, it appears that the defendants-original
defendants nos. 1 and 2 had sold 1206 sq. yards of land to different
persons and now they are in possession of 490 sq. yards of land in
question. Thus, when the defendants nos. 1 and 2 are the owners of
1798 sq. mtrs of land, they had right to sell the remaining 461.60
sq. yards of land.
4. Considering
the facts of the case, the trial Court was completely justified in
rejecting the application preferred by the appellants-original
plaintiffs. I am in complete agreement with the findings recorded
by the trial Court and hence find no reason to interfere with the
same.
5. Consequently,
the appeal is dismissed summarily. No order as to costs.
[K.S.
JHAVERI, J.]
ORDER
IN CIVIL APPLICATION
In
view of the order passed in the main matter, this application for
stay does not survive and the same stands disposed of accordingly.
[K.S.
JHAVERI, J.]
/phalguni/
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