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SCA/11818/2006 3/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11818 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
TALPADA
MALI BACHUBHAI - Petitioner(s)
Versus
RANCHHODBHAI
JIVABHAI MAHIDA & 4 - Respondent(s)
=========================================================
Appearance :
MR
PRADEEP PATEL for Petitioner(s) : 1,
RULE SERVED BY DS for
Respondent(s) : 1,
MS SUBHADRA G PATEL for Respondent(s) : 1,
MR
H AHMED for Respondent(s) : 1,
PARTY-IN-PERSON for Respondent(s) :
1,
MR AR MAJMUDAR for Respondent(s) : 2 - 5.
MR NK MAJMUDAR for
Respondent(s) : 2 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 16/09/2008
ORAL
JUDGMENT
Heard
learned advocate Shri Pradeep Patel for the petitioner, learned
advocate Shri A.R.Majmudar for respondents No.2 to 5 and Manojbhai
Ranchhodbhai power of attorney holder of respondent No.1 pursuant to
order dated 27.8.2008 passed by this Court in Civil Application
No.5315 of 2008.
Petitioner
is the original plaintiff No.5. He had filed Regular Civil Suit
No.110 of 2000 before the learned Civil Judge (Junior Division),
Borsad with respect to land bearing survey No.371 of Village:
Bhetasi, Tal. Borsad. Along with the suit, the plaintiffs i.e. the
present petitioner and respondent No. 2 to 5 had also filed interim
injunction application Exh.5 and prayed inter-alia that the
defendant be prevented from entering the suit land or from
obstructing the plaintiffs in cultivating and enjoying possession
thereof. The defendant i.e. respondent No.1 herein had also filed a
counter injunction application Exh.21.
2.1 It
appears that the respondent Nos. 2 to 5
herein are owners of the suit land. They have allegedly sold the
land in favour of the petitioner herein in the year 2000. The
defendant- present respondent No.1 claims to be in actual and lawful
possession thereof since time of his forefathers and had therefore,
opposed the suit and interim injunction application.
2.2 The
trial Court by its order dated 6.12.2000
rejected Exh.5 application of the plaintiffs and granted counter
injunction application Exh.21 filed by the defendant-respondent No.1
herein.
2.3 The
present petitioner challenged the said order passed by the trial
Court by filing appeal being Misc. Civil Appeal No 736 of 2006 which
appeal, however, came to be dismissed by an order dated 12.5.2006
passed by the Presiding Officer, 2nd Fast Track Court,
Anand, upon which, the present petition has been filed by the
original plaintiff No.5.
Learned
advocates appearing for the petitioner as well as respondents No. 2
to 5 strongly contended that the respondent No.1 herein original
defendant has no right, title and interest over the suit land. He
was also not in possession thereof. The Courts below, therefore,
erred in granting injunction in his favour. They, further, submitted
that the land originally belonged to the predecessors-in-title of
plaintiff No.1 to 4 i.e. Respondent Nos.2 to 5 herein. Uncle of the
respondent No.1, Maganbhai, had given loan to the predecessors of
the original owners but the entire loan amount was repaid and the
land mortgaged was reclaimed. Thereafter, neither Maganbhai nor any
of the heirs had any right to occupy the suit land. In any case,
present respondent No.1 is not even son of Maganbhai and he,
therefore, has no right at all on the suit land. It was further
contended that there was no evidence on record to permit the Courts
below to hold that respondent No.1 was in actual lawful possession
of the suit land.
On the other hand
on behalf of the respondent No.1 it was contended that there was
documentary evidence to show that father of the respondent No.1 and
thereafter, respondent No.1 himself continued to cultivate the land
for years.
Having
heard the concerned parties, I find that this petition arises out of
two orders passed by the Courts below at interlocutory stage. As
already noted, the trial Court found, as a matter of fact that
respondent No.1 was in actual possession of the suit land. In coming
to such a conclusion, the Court observed that father of the
defendant had for years together paid land revenue for the suit
land. Name of the father of the defendant was shown as occupier of
the land in 7/12 Forms. The revenue record also showed that he was
cultivating the land personally since 1954-55. The learned Judge
opined that report of the Court Commissioner was contrary to the
documentary evidence. Even the report suggested that there was
freshly prepared shed and the tin sheds were brand-new. He,
therefore, believed that there was an attempt to show the possession
of the plaintiffs. The plaintiffs had in the suit stated that the
defendant had threatened to disturb the possession of the plaintiff
two or three days before, which
required them to file the suit which was presented on
16.6.2000 whereas, in support of
the plaint, affidavits of neighbors were presented which were dated
31.5.2000. The learned Judge also observed that in the disputed land
for the first time on 12.11.1999 entry No.3054 was entered in
the revenue records and shortly, thereafter, the entry was certified
on 8.3.2000. The land was
immediately sold by the owners to plaintiffs No.5 on 5.4.2000 and in
the meantime, entry No.3054 was challenged and stayed by the
appellate Authority. On all these grounds, the learned Judge
was pleased to reject the Exh.5 application of the plaintiffs and
allowed application Exh.21 of the defendant No.1 for counter
injunction.
Appellate
Court also in detailed order concurred with the view of the trial
Court and dismissed the appeal.
I
do not find that the conclusions of the Courts below are perverse so
as to permit interference by this Court in exercise of writ
jurisdiction under Article 226 and/or 227 of the Constitution of
India. Interestingly, though the plaintiffs relied on an alleged
compromise between the parties, it may be noted that neither present
respondent No.1 nor other male members of the family were parties
therein. Even otherwise, I find that the conclusions were well
supported from the material on record. The petitioner has not been
able to explain the continuous entry in the revenue records in
favour of the father of respondent No.1. When respondent No.1 and
earlier his father had year after year for decades together paid
revenue for the said land, it was a relevant factor which was
rightly considered by the Courts below. They produced series of such
receipts. They had also produced supporting affidavits of the
farmers having land in the nearby area. If the original plaintiffs
Nos. 1 to 4 were in actual lawful possession of their own land,
there is no reason why they should not have objected to the name of
the father of respondent No.1 continuously for years together and
land revenue being paid by the father of respondent No.1 and
thereafter, respondent himself for years together. It is true that
revenue entries do not provide conclusive proof. However, coupled
with other attending circumstances and materials when two Courts
below have arrived at factual findings regarding the possession of
the respondent No.1, I do not find that this is a case where such
factual finding can be reversed.
In
the result, petition fails and is hereby dismissed. Rule is
discharged. Interim relief stands vacated. Needless to add, the
observations made by the Courts below in the impugned order as well
as this Court in the present order are purely prima-facie in nature
and will not come in way of either side in pursuing their rights and
contentions in the pending suit.
This
order shall stand stayed till 31st October, 2008 at the
request of Counsel for the petitioner.
(AKIL
KURESHI, J.)
ashish//
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