SCA/1184/2003 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1184 of 2003 With CIVIL APPLICATION No. 2482 of 2006 In SPECIAL CIVIL APPLICATION No. 1184 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= VIRAMGAM TALUKA PANCHAYAT - Petitioner(s) Versus BALDEVBHAI VIRJIBHAI KHODI PATEL - Respondent(s) ========================================================= Appearance : MR HS MUNSHAW for Petitioner(s) : 1, MR PANKAJ K SONI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/12/2008 ORAL JUDGMENT 1. Rule. Shri Pankaj K.Soni, learned advocate waives service of notice of Rule on behalf of SCA/1184/2003 2/9 JUDGMENT respondent. With the consent of the learned advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioner-original defendant has prayed for an appropriate writ, order or direction, quashing and setting aside the judgment and order dated 13.8.2002 passed by the learned 4th Extra Assistant Judge, Ahmedabad (Rural) passed in Civil Misc. Appeal No.40 of 2002 by which the learned appellate court has allowed the said appeal by quashing and setting aside the order passed by the learned trial court passed below Exh.5 in Regular Civil Suit No.37 of 2001 by directing the petitioner- defendant not to obstruct in possession of the plaintiff in Block No.3/137 of Village Mahadevpura, Taluka Viramgam till final disposal of the suit. 3. It appears that the disputed land is a gamtar land belonging to Mahadevpura Village and the same was encroached upon by the respondent herein-original SCA/1184/2003 3/9 JUDGMENT plaintiff, and when the proceedings were initiated by the Taluka Panchayat to remove the encroachment at that stage the respondent herein-original plaintiff instituted Regular Civil Suit No.37 of 2001 in the Court of learned Civil Judge (J.D.), Viramgam praying for declaration and permanent injunction. In the said suit the plaintiff submitted application Exh.5 for interim injunction and the learned trial court dismissed the said application Exh.5 vide order dated 24.6.2002 by holding that original plaintiff has no right, title in the land in question and that it cannot be said that the action of the Taluka Panchayat is prima-facie illegal and/or contrary to law. 3.1 Being aggrieved and dissatisfied with the order passed by the learned trial court passed below Exh.5 in dismissing the said application, the respondent-original plaintiff preferred Civil Misc. Appeal No.40 of 2002 before the learned District Court, Ahmedabad (Rural) which came to be heard, decided and disposed of by the learned 4th Extra Assistant Judge, Ahmedabad (Rural) who by his SCA/1184/2003 4/9 JUDGMENT judgment and order dated 13.8.2002 allowed the said appeal by quashing and setting aside the order passed by the learned trial court passed below Exh.5 in Regular Civil Suit No.37 of 2001 and restrained the petitioner-Panchayat from obstructing the possession of the plaintiff of Block No.3/137 of Village Mahadevpura, Taluka Viramgam till final disposal of the suit. 3.2 Being aggrieved and dissatisfied with the impugned order passed by the learned appellate court passed in Civil Misc. Appeal No.40 of 2002, petitioner-original defendant has preferred the present petition under Article 227 of the Constitution of India. 4. Shri H.S.Munshaw, learned advocate appearing on behalf of the petitioner-original defendant has vehemently submitted that the learned appellate court has materially erred in allowing the aforesaid appeal by quashing and setting aside the order passed by the learned trial court passed below Exh.5 and granting injunction in favour of the plaintiff and against SCA/1184/2003 5/9 JUDGMENT the defendant. It is also further submitted that the learned appellate court has also further materially erred in holding that the plaintiff was in possession of the disputed land. It is submitted that as such the plaintiff was not in possession of the suit property and as such there was an old construction by the Taluka Panchayat and at that stage the plaintiff instituted the suit and obtained ex-parte injunction. It is submitted that the plaintiff has failed to produce any documentary evidence prima facie showing his title over the land in question. It is submitted that as such the disputed land is a gamtar land and the petitioner-Panchayat was to put up construction for residential purpose of their employees. Therefore it is requested to allow the present petition. 5. Shri Pankaj K.Soni, learned advocate appearing on behalf of the respondent has tried to support the impugned order passed by the learned appellate court by submitting that considering the documents produced at Mack 3/1 to 3/3 Assessment Register etc., it can be said that the plaintiff has prima facie proved the SCA/1184/2003 6/9 JUDGMENT right of the plaintiff in the property, and relying upon the same the learned appellate court has rightly allowed the said appeal by quashing and setting aside the order passed by the learned trial court passed below Exh.5 which is not required to be interfered with by this Court under Article 227 of the Constitution of India. By making the above submissions, it is requested to dismiss the present petition. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. On considering the impugned order passed by the learned appellate court, it appears that the learned appellate court has relied upon the documents at March 3/1 to 3/3 which is extract of Assessment Register, however, the same cannot be said to be the prima facie proof with respect to the title. It appears that the disputed land is a gamtar land and prima facie it appears that the respondent-plaintiff has failed to produce any documentary evidence with respect to title of the disputed land. Considering SCA/1184/2003 7/9 JUDGMENT the photographs, it appears that the plaintiff cannot be said to be in possession of the disputed land. There is some old construction put up by the Taluka Panchayat and the Taluka Panchayat started to put up construction on the said land for residential complex for their employees and at that stage the plaintiff filed the aforesaid suit and obtained the ex-parte injunction which came to be vacated by the learned trial court vide order passed below Exh.5. On considering the impugned order, it appears that the learned appellate court has materially erred in prima-facie coming to the conclusion that the plaintiff was in possession of the disputed land. In the circumstances it appears that the learned appellate court has materially erred in allowing the appeal and quashing and setting aside the order passed by the learned trial court refusing to grant injunction in favour of original defendant-Taluka Panchayat more particularly when the land is gamtar land and the Taluka Panchayat was putting up the construction for their employees, the Taluka Panchayat cannot be restrained from putting up the construction. SCA/1184/2003 8/9 JUDGMENT 8. As stated above, it cannot be said that even the plaintiff was in possession of the said land at the relevant time. Under the circumstances, the impugned order passed by the learned appellate court deserves to be quashed and set aside. However, it is to be observed that if any construction is made, the same will always be subject to the ultimate outcome of the suit. 9. For the reasons stated above, the petition succeeds. The impugned judgment and order passed by the learned appellate court dated 13.8.2002 passed in Civil Misc. Appeal No.40 of 2002 is hereby quashed and set aside and the order passed by the learned trial court passed below Exh.5 in Regular Civil Suit No.37 of 2001 is hereby restored with observations that any construction hereinafter by the Taluka Panchayat will always be subject to the ultimate outcome of the suit. Rule is made absolute accordingly to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. Considering the fact that the SCA/1184/2003 9/9 JUDGMENT civil suit is of the year 2001, the learned trial court is directed to decide and dispose of the suit as expeditiously as possible if pleadings are completed. In view of allowing the Special Civil Application, no order in Civil Application. Registry is directed to send writ to the trial court immediately. ( M.R. SHAH, J. ) syed/