SCA/1345120/2007 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13451 of 2007 With APPEAL FROM ORDER No. 367 of 2007 With CIVIL APPLICATION No. 12730 of 2007 In APPEAL FROM ORDER No. 367 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================== 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 ? ========================================== PREMCHAND BARMAL CHHEDA & 2 - Petitioner(s) Versus BHARAT MAGANLAL SHAH & 1 - Respondent(s) ========================================== Appearance : MR TUSHAR MEHTA for Petitioner(s) : 1 - 3. MR SHALIN N MEHTA for Respondent(s) : 1, MS ARCHANA R ACHARYA for Respondent(s) : 2, ========================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/11/2008 CAV JUDGMENT SCA/1345120/2007 2/18 JUDGMENT 1. As the present Special Civil Application and the Appeal from Order are with respect to the same land and between the same parties, they are being disposed of by this common judgment and order. 2. Special Civil Application No. 13451/2007 is filed by the petitioners (proposed defendants) of Special Civil Suit No. 26/2006 pending in the Court of learned Principal Civil Judge, Jamnagar under Article 227 of the Constitution of India for an appropriate writ, order or direction quashing and setting aside the impugned order passed by the learned trial Court dated 09/05/2007 below Exh. 17 in the aforesaid suit by which the learned trial Court has allowed the said application submitted by respondent no. 1-original plaintiff permitting respondent no.1-original plaintiff to join the petitioners as party defendants to the aforesaid suit. 3. It is further prayed for an appropriate writ, order or direction quashing and setting aside the order dated 22/03/2006 passed below Exh. 14 in the aforesaid Special Civil Suit No. 26/2006 with respect to the land bearing Revenue Survey No. 1410/2 by which the learned trial Court has passed an order directing the parties to maintain status quo with respect to the said land. 4. It is further prayed for an appropriate writ of certiorari and/or any other appropriate writ, order or direction dismissing Special Civil Suit No. 26/2006 qua the present petitioners and with respect to the land bearing Revenue Survey No. 1410/2. SCA/1345120/2007 3/18 JUDGMENT 5. Appeal from Order No. 367/2007 is filed by the appellant- original plaintiff of Special Civil Suit No. 102/2007, who is also respondent no. 2 in Special Civil Application No. 13451/2007 and original defendant in Special Civil Suit No. 26/2006, challenging the order dated 17/09/2007 passed by the learned 2nd Additional Senior Civil Judge, Jamnagar below Exh. 5 in Special Civil Suit No. 102/2007 by which the learned trial Court has dismissed the application, Exh. 5 submitted by the appellant-original plaintiff and refused to grant any interim injunction. 6. At the outset it is to be noted that the present is a glaring example of abuse of process of Court by the respective plaintiff of the aforesaid suits. 7. Few facts are necessary for the purpose of determination of the present Special Civil Application and the Appeal from Order and the facts leading to the present Special Civil Application and the Appeal from Order in a nutshell are as under; 7.1. Respondents nos. 1 and 2, i.e., Shri Bharat Maganlal Shah and Shri Snehkant @ Sudhir Maganlal Shah in the Special Civil Application are the real brothers. Petitioner no. 1- Shri Premchand Barmal Chheda in the Special Civil Application is the maternal uncle of the aforesaid two brothers. Shri Bharat Maganlal Shah had filed Special Civil Suit No. 26/2006 in the court of learned Principal Civil Judge, Jamnagar against his brother Shri Snehkant @ Sudhir Maganlal Shah for partition of the land bearing Revenue Survey No. 1410 paiki and 1407 situated at Jamnagar. It was the specific case on behalf of SCA/1345120/2007 4/18 JUDGMENT respondent no. 1-original plaintiff that Revenue Survey No. 1410/2 paiki was belonging to petitioner no.1- Shri Premchand Barmal Chheda, their maternal uncle, and he has given the land admeasuring 1 Hectare 16 Gunthas and 35 Ares bearing Revenue Survey No. 1410 paiki to them and accordingly the said land has become the joint property and, therefore, he has got the share in the said property. It is required to be noted in the said suit that initially only Shri Snehkant @ Sudhir Maganlal Shah was joined as a party defendant. It is required to be noted that in the aforesaid suit very vague description of the property has been given. The description of the property in paragraph nos. 2 and 6 of the plaint as well as the description of the property of the land is shown as “the land taken from maternal uncle”. In the said suit, respondent no. 1 herein- original plaintiff submitted an application, Exh. 7 praying for appointment of Court Commissioner and the learned trial Court on the very day passed an order of appointment of Court Commissioner and preparation of panchnama. In the said suit, respondent no. 1-original plaintiff had also filed an application for interim injunction below Exh. 5 and the learned trial Court issued notice only to the sole defendant making it returnable on 22/03/2006. On 22/03/2006, respondent no. 1 herein- original plaintiff submitted an application, Exh. 14 praying for an order directing the parties to maintain status quo. On the first returnable date i.e. on 22/03/2006, respondent no. 2 herein, the sole defendant, made an endorsement conveying that till he files the reply, respondent no. 2 will maintain the status quo and accordingly, the learned trial Court passed an order dated 22/03/2006 below Exh. 14 directing respondent no. 2-original sole defendant to maintain status quo till the Exh. 5 application is heard. Thereafter, after securing the ex parte SCA/1345120/2007 5/18 JUDGMENT interim order of maintaining status quo, respondent no. 1- original plaintiff submitted an application, Exh. 17 seeking to implead the present petitioners as party defendants. The said application, Exh. 17 was opposed by the petitioners (proposed defendants). However, the learned trial Court allowed the said application, Exh. 17 by impugned order dated 09/05/2007 directing the petitioners-third parties to be joined as party defendants in the aforesaid suit. Being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh. 17 and the order passed below Exh. 14, the petitioners (proposed defendants) have preferred the present Special Civil Application under Article 227 of the Constitution of India. 7.2. The learned Single Judge of this Court issued notice in the present Special Civil Application upon the respondents on 24/05/2007 making it returnable on 25/06/2007 and granted ad-interim relief in terms of paragraph 8(D) i.e. staying the implementation and execution of the portion of the orders passed below Exhs. 14 and 17 in Special Civil Suit No. 26/2006. 7.3. After the aforesaid proceedings were stayed by this Court, respondent no. 2 herein-original defendant of Special Civil Suit No. 26/2006, brother of respondent no. 1-original plaintiff filed another Special Civil Suit No. 102/2007 against the petitioners herein, District Collector, Jamnagar, Jamnagar Municipal Corporation and respondent no. 1-Bharat Maganlal Shah, original plaintiff of Special Civil Suit No. 26/2006 for declaration and permanent injunction declaring that he has become the absolute owner of the land bearing Revenue Survey No. 1014 admeasuring 1 Hectare 16 Gunthas and 35 SCA/1345120/2007 6/18 JUDGMENT Ares and Revenue Survey No. 1407 by adverse possession and for permanent injunction restraining the defendants from interfering with his possession without following the due procedure of law. In the said suit, Snehkanth @ Sudhir Maganlal Shah, respondent no. 2 herein and original plaintiff of Special Civil Suit No. 102/2007 submitted an application, Exh. 5 for interim injunction and the learned trial Court by the impugned order dated 17/09/2007 dismissed the application, Exh. 5 with cost by observing that respondent no. 2 has filed a collusive suit with respondent no. 1 and that he has committed fraud and on merits he is not entitled to the injunction as prayed for. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court below Exh. 5 dated 17/09/2007, respondent no. 2 of Special Civil Application No. 13451/2207 and the appellant of Appeal from Order No. 327/2007 has preferred the present Appeal from Order and the Civil Application for interim relief therein under Order 43 Rule 1 of the Code of Civil Procedure. 8. Both the Special Civil Application and the Appeal from Order came to be consolidated and heard together and they are being disposed of by this common order. 9. Shri Tushar Mehta, learned advocate appearing on behalf of the petitioners in Special Civil Application No. 13451/2007 has vehemently submitted that respondent no. 1 herein and original plaintiff of Special Civil Suit No. 26/2006 had filed collusive suit against respondent no. 2 for partition giving vague description of Survey No. 1410 paiki by producing the old revenue record and not producing the correct revenue record and obtained the order of status quo and thereafter, an SCA/1345120/2007 7/18 JUDGMENT application was submitted to join the petitioners as defendants. It is submitted that admittedly petitioner no. 1 and others are the co owners of the land bearing Revenue Survey No. 1410/2 paiki admeasuring 1 Hectare 16 Gunthas 35 Ares and inspite of the fact that the same is of absolute ownership and they are in exclusive possession of the said land in question, still respondent no. 1 has stated in the plaint that the said land has been given to them by petitioner no. 1 herein. Thus, the land is of the joint ownership and, therefore, respondent no. 1- original plaintiff has got the share in the said suit land. It is submitted that as such no document has been produced on record. It is submitted that by giving vague description and with a malafide intention the collusive suit has been filed. It is further submitted that in the suit for partition, the petitioners cannot be said to be a necessary and/or proper party and as such by granting the application, Exh. 17 directing the petitioners to be joined as party defendants, the nature of the suit will also be changed as the suit for partition will be converted into a suit for title. It is submitted that in the suit for partition only the coparceners are required to be joined as defendants. It is further submitted by Shri Tushar Mehta, learned advocate appearing on behalf of the petitioners that even subsequently with a malafide intention and after this Court granted the stay of the orders passed below Exhs. 14 and 17 and stay of the further proceedings of Special Civil Suit No. 26/2006, respondent no. 2 herein- Shri Snehkanth @ Sudhir Maganlal filed another collusive suit against the petitioner and others for a declaration that he has become the absolute owner by adverse possession. It is submitted that respondent no. 2-Shri Snehkanth @ Sudhir Maganlal had also filed one criminal complaint/FIR against petitioner no. 1, in which it is SCA/1345120/2007 8/18 JUDGMENT the case on behalf of the said Shri Snehkanth @ Sudhir Maganlal that the land in question was sold to him by the petitioners but no documents were executed and all together a new story has been concocted by filing the suit, being Special Civil Suit No. 102/2007 submitting that he has become the owner by adverse possession and tried to obtain interim injunction by submitting the application, Exh. 5, which is rightly rejected by the learned trial Court. It is submitted that as such Special Civil Suit No. 26/2006 itself is required to be dismissed on the ground that it is nothing but sheer abuse of process of Court. It is submitted that the petitioners are neither necessary nor proper parties in the suit filed by respondent no. 1 herein, which is filed by respondent no.1 for partition against his brother with respect to the land bearing Revenue Survey No. 1041 paiki. It is submitted that as such the land bearing Revenue Survey No. 1410 paiki is divided into five parts and Revenue Survey No. 1410/2 paiki admeasuring 1 Hectare 16 Gunthas 35 Ares is of the ownership of petitioner no. 1 and other co owners. It is also further submitted that respondent no. 1-original plaintiff and the respondents nos. 2 and 3- original defendants nos. 1 and 2 have nothing to do with land bearing Revenue Survey No. 1410/2 paiki admeasuring 1 Hectare 16 Gunthas 35 Ares but still with a malafide intention and to grab the said land, the aforesaid collusive suit has been filed and the order of status quo with respect to the aforesaid land has been obtained. It is further submitted that the impugned order passed by the learned trial Court below Exhs. 14 and 17 deserves to be quashed and set aside and the present Special Civil Application is required to be allowed with exemplary cost. SCA/1345120/2007 9/18 JUDGMENT 10. The petition is opposed by Shri Shalin Mehta, learned advocate appearing on behalf of respondent no. 1 in Special Civil Application No. 13451/2007 and the original plaintiff of Special Civil Suit No. 26/2006 and Ms. Archana Acharya, learned advocate appearing on behalf of respondent no. 2 herein-original defendant of Special Civil Suit No. 26/2006. It is submitted that in the facts and circumstances of the case, when the petitioners claim that they are the absolute owner of the land bearing Survey No. 1410/2, which is subject matter of the suit, if any relief is granted in the aforesaid suit, the petitioners would be directly affected and, therefore, the learned trial Court has rightly granted the application, Exh. 17 permitting the petitioners to join as defendants for effective and complete hearing and adjudication of the suit. It is submitted that in view of the above, no case is made out for interference of this Court in exercise of powers under Article 227 of the Constitution of India. Therefore it is requested to dismiss the present Special Civil Application. 11. Shri R.K. Savjani, learned advocate appearing on behalf of the appellant of Appeal from Order No. 367/2007 and the original plaintiff of Special Civil Suit No. 102/2007 has vehemently submitted that in the facts and circumstances of the case, the learned trial Court has materially erred in not allowing the application, Exh. 5 and not granting interim injunction as prayed for. It is further submitted by Shri Savjani, learned advocate appearing on behalf of the appellant that the learned trial Court has materially erred in holding that the defendants nos. 1 to 3 in the aforesaid suit are in possession of the land in question and that the appellant-original plaintiff is not in possession of the land in question. It is submitted that SCA/1345120/2007 10/18 JUDGMENT the appellant is cultivating the aforesaid land and is also in exclusive possession of the land and, therefore, the learned trial Court ought to have granted the order of status quo. It is further submitted that once the learned trial Court comes to the conclusion that "adverse possession is a question of evidence", the learned trial Court ought to have granted the application, Exh. 5 and ought to have directed the parties to maintain status quo qua the land in question. It is submitted that non grant of status quo qua the land in question will result into failure of justice and will lead to multiplicity of proceedings. It is also further submitted that the learned trial Court has materially erred in holding that the learned trial Court cannot stay the proceedings pending before the Collector, Jamnagar for grant of N.A. permission and that the parties have to approach the High Court for such a relief. By making the aforesaid submission, it is requested to allow the present Appeal from Order and allow the application, Exh. 5 in Special Civil Suit No. 102/2007 by directing the respondents- original defendants to maintain status quo with respect to the land in question. Shri Tushar Mehta, learned advocate appearing on behalf of respondents nos. 1 and 2 in Appeal from Order while opposing the said Appeal from Order has submitted that the learned trial Court has rightly rejected the application, Exh. 5. He has submitted that Special Civil Suit No. 102/2007 is filed by the appellant-original plaintiff with a malafide intention and it is a collusive suit. It is submitted that in the complaint/FIR filed by the very appellant-original plaintiff, it is his case that he has purchased the suit land in question from his maternal uncle i.e. respondent no. 1 herein. However, the sale deed was not executed and, therefore, the complaint has been filed for the offence under Section 420 of SCA/1345120/2007 11/18 JUDGMENT the Indian Penal Code and for other offences and on the other hand the appellant-original plaintiff has claimed the ownership by way of adverse possession by filing the present suit and all together a new story has been concocted by the original plaintiff. It is submitted that in the Revenue record and the other records, the suit land in question i.e. the land bearing Revenue Survey No. 1410/2 is in the name of respondents nos. 1 and 2 and other co owners and not only that they have submitted the necessary plans with the Corporation and have also submitted an application for N.A. permission and the same is also granted by the Collector, Jamnagar. It is also further submitted that inspite of the fact that there are other co owners of the land bearing Revenue Survey No. 1410/2 only respondents nos. 1 and 2 are joined as party defendants, which shows malafide intention on the part of the appellant-original plaintiff. As the appellant-original plaintiff has not come out with clean hands and has filed collusive suit with a malafide intention, the learned trial Court has rightly dismissed the application, Exh. 5 and has not granted the injunction as prayed for and, therefore, it is requested to dismiss the present Appeal from Order. Appeal from Order No. 327/2007 is opposed by the original defendants, more particularly, the petitioners of Special Civil Application No.13451/2007. 12. Heard the learned advocates appearing on behalf of the respective parties. 13. So far as Special Civil Suit No. 26/2006 filed by respondent no. 1-Shri Bharat Maganlal Shah-original plaintiff is concerned, it is a suit filed against his brother, respondent no. 2-Shri Snehkant @ Sudhir Maganlal for partition. On SCA/1345120/2007 12/18 JUDGMENT considering the plaint, it appears that vague description of the land bearing Revenue Survey No. 1410 paiki has been mentioned. However, in fact the land bearing Survey No. 1410 is divided into five parts and admittedly the land bearing Survey No. 1410/2 is of petitioner no. 1 and others. Initially respondent no. 1-original plaintiff filed the suit against his real brother- Shri Snehkanth @ Sudhir Maganalal only knowing fully well that the petitioner and others are owners of land bearing Survey No. 1410/2. Respondent no. 1 obtained the order of appointment of Court Commissioner who prepared the panchnama and tried to see that his possession is shown. Though the order of the Court Commissioner was passed ex parte, at the time of preparation of panchnama by the Court Commissioner, the original defendant-Shri Snehkant @ Sudhir Maganlal had remained present. This, shows the conduct on the part of respondents nos. 1 and 2 suggesting that the aforesaid suit has been filed collusively. Respondent no. 1 herein-original plaintiff submitted an application, Exh. 5 for interim injunction in which the learned trial Court only issued notice. On the first returnable date, respondent no. 1-original plaintiff submitted an application, Exh. 14 for an order of status quo. Respondent no. 2-original defendant had made an endorsement that till he files the reply, he has no objection if the order of status quo is granted and accordingly, the learned trial Court has granted the order of status quo till the decision of Exh. 5 and immediately thereafter, having obtained the order of status quo, respondent no. 1 herein-original plaintiff submitted an application, Exh. 17 permitting him to join the petitioners as defendants and the learned trial Court has passed an order permitting the original plaintiff to join the petitioners as defendants. In the suit for partition only SCA/1345120/2007 13/18 JUDGMENT coparceners are required to be joined as party to the suit and only with respect to those properties, which are ancestral properties, relief can be granted. Respondent no. 1-original plaintiff has claimed that the petitioner no. 1-maternal uncle of respondent no. 1-original plaintiff has given the said land to him and, therefore, it has become the joint family property and he has a share in the property. However, nothing is on record to support his case. The order passed by the learned trial Court below Exhs. 14 and 17 came to be challenged by the petitioners by way of the present Special Civil Application and the learned Single Judge of this Court issued notice on 24/05/2007 making it returnable on 26/06/2007 and granted ad-interim relief staying the order passed below Exhs. 14 and 17 and staying further proceedings of Special Civil Suit No. 26/2006. Immediately, thereafter, respondent no. 2-Shri Snehkanth @ Sudhir Maganlal had filed one another suit, being Special Civil Suit No. 102/2007, against the petitioners, Collector, Jamnagar, Jamnagar Municipal Corporation and respondent no. 1 for a declaration that he has become the owner by adverse possession of the land bearing Revenue Survey No. 1410/2 paiki admeasuring 1 Hectare 16 Gunthas 35 Ares. In the said suit, he submitted an application, Exh. 5 and initially obtained the ex parte ad-interim injunction of status quo without even disclosing the pendency of the Special Civil Suit No. 26/2006, the order passed below Exhs. 14 and 17 and the ad-interim order passed by this Court dated 24/05/2007. Thereafter, the application, Exh. 5 has been dismissed by the learned trial Court. 14. It s also required to be noted at this stage that in the subsequent suit filed by respondent no. 2-Snehkanth @ Sudhir SCA/1345120/2007 14/18 JUDGMENT Maganlal Shah, he has claimed the ownership by adverse possession. However, the very Snehkanth @ Sudhir Maganlal Shah had lodged an FIR against the petitioner and others for the offence punishable under Section 420 submitting that the said land has been purchased by him from petitioner no. 1 and that the sale deed was not executed. Thus, in two different proceedings, there is a different story by the said Shri Snehkanth @ Sudhir Maganlal Shah. Considering the above, it appears that both the suits are collusive suits filed with a malafide intention to defeat the right of petitioner no. 1 and other co owners of land bearing Survey No. 1410/2 admeasuring 1 Hectare 16 Gunthas 35 Ares. 15. Now in the backdrop of the above facts, the order passed by the learned trial Court below Exhs. 14 and 17 in Special Civil Suit No. 26/2006 is required to be considered. As stated hereinabove, Special Civil Suit No. 26/2006 is a suit for partition and no outsider other than the coparceners are a necessary party or a proper party. If third parties are joined as defendants, in that case, the nature of the suit will also be changed and the suit for partition will be converted into suit for title. Under the circumstances, the petitioners cannot be said to be a proper or a necessary party in whose absence the Court cannot adjudicate the dispute in the suit. Under the circumstances, the learned trial Court has committed an error in allowing the application, Exh. 17 by directing the petitioners to join as defendants in the suit for partition. Under the circumstances, the said order deserves to be quashed and set aside. Even, it appears that the application, Exh. 17 is also filed with an oblique