SCA/11818/2006 1/6 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 SCA/11818/2006 2/6 JUDGMENT ORAL JUDGMENT 1. 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. 2. 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 SCA/11818/2006 3/6 JUDGMENT 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. 3. 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. SCA/11818/2006 4/6 JUDGMENT 4. 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. 5. 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 SCA/11818/2006 5/6 JUDGMENT 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. 6. Appellate Court also in detailed order concurred with the view of the trial Court and dismissed the appeal. 7. 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 SCA/11818/2006 6/6 JUDGMENT 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. 8. 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. 9. This order shall stand stayed till 31st October, 2008 at the request of Counsel for the petitioner. (AKIL KURESHI, J.) ashish//