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AO/29820/2005 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 298 of 2005
With
CIVIL
APPLICATION No. 7577 of 2005
In
APPEAL FROM ORDER No. 298 of 2005
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KAMUDDIN
HAPHIZBHAI & 2 - Appellant(s)
Versus
MUZFARKHAN
FATEHKHNA & 1 - Respondent(s)
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Appearance :
MR
DP KINARIWALA for Appellant(s) : 1 -
3.
MR KV SHELAT for Respondent(s) : 1,
SERVED BY AFFIX.(N) for
Respondent(s) : 1.2.1,1.2.2
NANAVATI & NANAVATI for
Respondent(s) : 2,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 01/08/2008
ORAL
ORDER
1. In
the present Appeal From Order, the appellants original defendants
have challenged the order passed by the learned Judge, City Civil
Court No.19, Ahmedabad dated 16.6.2005 below Notice of Motion below
Exhs.6 & 7 in Civil Suit No.890/2005.
2. It
appears that the original plaintiffs have filed the Civil Suit
No.890/2005 along with the Notice of Motion, inter-alia contending
that the suit property bearing City Survey No.4265 and Municipal
Census No.2469/1 at Shahpur ward City and Taluka, District Ahmedabad
is given to the plaintiffs as gift on 03.06.1960; and all the
defendants are the co-owners of the property bearing City Survey
No.4266, and they are also in possession of the said property. Both
the properties are adjoining to each other, and there is a common
wall and common chowk between the two properties; and that the
defendants have made illegal construction in the common chowk and are
restraining the plaintiffs to take water connection from common
chowk. And, therefore, in the said Notice of Motion, it was prayed
for removal of illegal construction, and also prayed that defendants
should not restrain the plaintiffs from taking water from the common
chowk of the suit property. Learned Judge, City Civil Court has
allowed the Notice of Motion by his order dated 16.06.2005, granting
the relief in terms of paragraph 7(b), restraining the defendants
from obstructing the plaintiff, while the plaintiffs are taking water
connection in his property bearing City Survey No.4265 from the
common chowk between the property of the plaintiffs and the
defendants; and they are also restrained from obstructing the
plaintiffs while repairing electric connection or drainage connection
in the common plot.
3. At
the outset, it is required to be noted that the impugned order has
been passed on 16.6.2005, and till date, there is no interim order in
favour of the appellants, meaning thereby that the order passed below
Notice of Motion is in operation since last more than three years.
Even otherwise, this Court has gone through the map prepared by the
Court Commissioner, produced by the ld.advocate appearing on behalf
of the appellants, and looking to the same, it appears that there is
a common chowk, and on one side there is a property belonging to the
plaintiffs, and on the other side, there is a property belonging to
the defendants, and their exists one water tank and the common chowk,
drainage etc.
4. Considering
the above, prima-facie it appears that the learned Judge, City Civil
Court has not committed any error in granting relief only in terms of
paragraph 7(b). Under the circumstances, as there is no illegality
committed by the learned Trial Court, the same does not warrant any
interference of this Court.
5. It
will be open for the respective parties to move an appropriate
application before the learned Trial Court, for expeditious hearing
of the Suit, and if the pleadings are completed, the same shall be
considered by the Trial Court.
6. Accordingly,
the present Appeal From Order requires to be dismissed, and the same
is dismissed. In view of the dismissal of the Appeal From Order, no
order in Civil Application. Notice is discharged.
(M.R.
SHAH, J.)
(binoy)
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