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SCA/12075/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12075 of 2008
==========================================
RAJPUT
JAMABHAI HEMABHAI - Petitioner(s)
Versus
PATEL
RAVJIBHAI KHEMABHAI - Respondent(s)
==========================================
Appearance
:
MR DHAVAL M
BAROT for Petitioner(s) : 1,
None for
Respondent(s) : 1,
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 06/10/2008
ORAL
ORDER
1. By
way of this petition under Article 227 of the Constitution of India
the petitioner has prayed for an appropriate writ, order or direction
quashing and setting aside the order dated 31/01/2008 passed by the
learned Additional District Judge, Banaskantha at Deesa in Criminal
Miscellaneous Appeal No. 48/2007 dismissing the same and confirming
the order passed by the learned trial Court below Exh. 5 dated
04/10/2007 in Regular Civil Suit No. 11/2007.
2. At
the outset, it is required to be noted that the petitioner is
claiming some right on the basis of the alleged partnership deed
dated 18/10/1999 and even considering the same and according to the
petitioner also, the petitioner is only entitled to 50% of the share
in the profit after selling the land in question. The petitioner is
neither the owner of the land in question nor holding any agreement
to sell or banakhat in his favour. The petitioner had instituted
Special Civil Suit in the Court of learned Civil Judge, Tharad
against the respondent herein who is an illiterate poor agriculturist
restraining him from selling the land in question beyond the
partnership deed. In the said suit, the petitioner had submitted an
application Exh. 5 restraining the respondent from selling the land
in question and the learned trial Court dismissed the said
application, Exh. 5, against which the petitioner preferred an appeal
before the learned appellate Court, which also came to be dismissed.
Both the Courts below have prima faice found that the partnership
deed is illegal and with a view to take disadvantage of the
illiteracy of the poor agriculturist. The aforesaid finding is given
by the learned trial Court by considering the fact that everything is
done by the respondent-original land owner i.e. the expenditure is
incurred by him and the premium amount is also paid by the respondent
while getting the land converted into non agriculture. Being
aggrieved and dissatisfied by the order of both the Courts below,
the petitioner has preferred the present Special Civil Application
under Article 227 of the Constitution of India.
3. Shri
Dhaval M. Barot, learned advocate appearing on behalf of the
petitioner has fairly conceded that the respondent cannot be
restrained from selling the property/ land in question even
considering the partnership deed. It is further submitted that the
petitioner is entitled to 50% of the share in the profit, and,
therefore, the respondent may be directed to deposit the said amount
before the learned trial Court subject to the petitioner being a
confirming party to the said transaction.
4. Having
heard Shri Dhaval M. Barot, learned advocate appearing on behalf of
the petitioner and considering the partnership deed dated 18/10/1999
as well as the order passed by the both the Courts below and even as
the fact is conceded by the learned advocate appearing on behalf of
the petitioner that the respondent cannot be restrained from selling
the land in question, however, the only submission on behalf of the
petitioner to be considered is that the respondent may be directed
to deposit 50% of the amount, which the petitioner is entitled to
under the partnership deed dated 18/10/1999. It is required to be
noted that such an eventuality is not to be taken at present. Even
otherwise, this is not a suit for account and the suit is only filed
for injunction and not for declaration. Under the circumstances,
such a relief cannot be granted. Though both the Courts below have
prima facie found that partnership deed is illegal and the order is
passed with a view to take disadvantage of the illiteracy of the
respondent, the same is required to be considered at the time of
trial. The fact remains that the respondent cannot be restrained
from selling the property in question.
5. Considering
the above and the concurrent findings given by both the Courts below,
it cannot be said that both the Courts below have committed an error
in not restraining the respondent from selling the property/land in
question. After the property is sold, if the petitioner has no
right to get any amount under the partnership deed, appropriate
remedy available to the petitioner will be to file a substantive suit
for accounts on the basis of the alleged partnership deed dated
18/10/1999. However, such a relief cannot be prayed in the present
petition.
6. For
the reasons stated hereinabove, there is no substance in the present
petition, and, therefore it is required to be dismissed and the same
is dismissed.
(M.R.
SHAH, J.)
siji
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