FA/255/1990 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 255 of 1990 With FIRST APPEAL No. 326 of 1990 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 ========================================================= ARJUNBHAI GOVINDBHAI SINOL. & 3 - Appellant(s) Versus SARABHAI GIRDHARLAL PATEL & 17 - Defendant(s) ========================================================= Appearance : MR ARUN H MEHTA for Appellant(s) : 1 - 4. (MR PV NANAVATI) for Defendant(s) : 1, MR MUKUND M DESAI for Defendant(s) : 2, MR PR NANAVATI for Defendant(s) : 3 - 18. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/06/2008 ORAL JUDGMENT 1. As both these appeals arise out of common judgment FA/255/1990 2/10 JUDGMENT and decree passed by the trial court and are pertaining to the same parcel of land, they are being disposed of by this common judgment and order. 2. First Appeal No.255 of 1990 is filed by the appellants- original plaintiffs being aggrieved by the judgment and decree passed by the learned Judge of the City Civil Court, Court No.10, Ahmedabad in Civil Suit No.521 of 1984 in dismissing the said suit. First Appeal No.326 of 1990 is filed by the appellant- original plaintiff being aggrieved by the judgment and decree passed by the learned Judge of the City Civil Court, Court No.10, Ahmedabad in Civil Suit No.1012 of 1984 in dismissing the said suit. By common judgment and decree dated 30.11.1989 the trial court has dismissed the aforesaid suits i.e. Civil Suit No.521/84 and Civil Suit No.1012/84 and against the same present two appeals are filed by the original plaintiffs. 3. The facts giving rise to the present appeals may be briefly stated as under:- FA/255/1990 3/10 JUDGMENT 3.1 There is land of Survey No.405 of Rajpur Hirpur area in Jamalpur T.P.Scheme No.1. The Final Plot number of the said land is 68 and houses of Shrinagar Colony were build by M/s.Free India Construction Co., as per plan which was sanctioned from the Municipality. Out of the said Final Plot No.68, 20 sub-plots were made and M/s.Free India Construction Co., made construction on 20 blocks on the said land. The plaintiff nos. 1 to 5 in Civil Suit No.521/84 are the owners of Plot Nos.1, 18, 2, 14 and 19. It is the contention of the plaintiffs that their respective blocks were sold to them by separate documents and they were given leasehold rights on the respective land and ownership right over the construction made thereon and they are in possession of the respective blocks as owners thereof. 3.2 As regards land of Final Plot No.68, the contention of the plaintiffs is that originally the land was in possession of one Bai Jekor daughter of Patel Motilal Dalpatram and one Gajjar Ramanlal Gordhandas and Jaybhadra Gordhandas kept the said land on lease from the said Bai Jekor on 15th October, 1934. The said Gajjar Ramanlal Gordhandas and others gave the land on lease to one Marwadi Narsaji Chanaji on 13.2.47 FA/255/1990 4/10 JUDGMENT and the said document was registered with the Sub-Registrar of Ahmedabad in Block No.1 at Serial No.1431 and since then Narsaji Chenaji was in possession of the said land. One Bai Subhadra, daughter of Chandulal Gulabchand and wife of defendant no.1 Sarabhai Girdharbhai Patel in Civil Suit No.521/84 kept the said land on lease for a period of 999 years by a registered deed. The area of the said land bearing Final Plot No.68 was 4695 square yards as per the entry in the record of right and 4743 square years as per description in the document of lease. Bai Subhadra, wife of defendant No.1 gave the said land of Final Plot No.68 for developing the same to M/s.Free India Construction Company of whom defendant No.1 was a partner. M/s.Free India Construction Company made 20 plots of the said land and made construction of 20 blocks and then they sold the construction of the said blocks with leasehold rights over the land on which they were situated as also with margin land. Out of the said land of Final Plot No.68, land ad-measuring 15.75 metres x 59.9 metres was kept open and the said land which will hereinafter be referred to as the suit land was also given to the owners of the Block Nos.1 to 20 and they were using the suit land as land of their own common plot. It is alleged that the defendant No.1 in collusion with defendant No.2 of Civil Suit FA/255/1990 5/10 JUDGMENT No.521/84 is making an attempt to make construction on the suit land situated to the west of the Block Nos. 1 to 10 of Shrinagar Colony and the suit has been filed in order to restrain them from making any construction thereon alleging that the suit land is in possession and actual use of the owners of 20 blocks of Shrinagar Colony and the defendant Nos.1 and 2 have no right to make any construction thereon. A permanent injunction is, therefore, prayed restraining the defendant Nos.1 and 2 from making any construction on the suit land either personally or through their servants, agents or persons claiming through them. 3.3 The original defendants No.3 to 18 in Civil Suit No.521/84 were the owners of other blocks of Shrinagar Colony and they were supporting the original plaintiffs. 3.4 So far as Civil Suit No.1012/84 is concerned, the same was filed by one Dr.Kishanbhai Shankarrav owner of Block No.3 of Shrinagar Colony situated on Final Plot No.68, same relief which was prayed in Civil Suit No.521/84 was prayed by the said plaintiff. 3.5 Both the aforesaid suits were opposed by the contesting FA/255/1990 6/10 JUDGMENT defendants by filing written statements. It was submitted that the plaintiffs have no right to file the suit like the same and the suits have been filed with a view to usurp the possession of the suit land which was not given to them either on ownership basis or on leasehold basis. It was specifically contended on behalf of the contesting defendants that the plaintiffs as well as the defendants supporting the plaintiffs have no right, title or interest in the suit land. It was contended that the suit is bad for mis-joinder of parties. The learned trial court framed the issues at Exh.52 in Civil Suit No.521/84. The learned trial court, on appreciation of evidence held all the issues No.1 to 5 in negative and held the issue No.6 in affirmative, and considering the findings on issue No.1 to 6, the trial court held that the plaintiffs are not entitled to the relief of permanent injunction as prayed for. 3.6 Being aggrieved and dissatisfied with the common judgment and decree dated 30.11.1989 passed by the trial court passed in Civil Suit No.521/84 and Civil Suit No.1012/84, the respective appellants-original plaintiffs have preferred the present First Appeals. 4. Mr.Arun Mehta, learned advocate appearing on behalf FA/255/1990 7/10 JUDGMENT of the appellants-original plaintiffs while assailing the impugned judgment and decrees has submitted that the trial court has materially erred in dismissing the suits by holding that the plaintiffs are not entitled to the relief of permanent injunction as prayed for. It is submitted that the learned Judge has mis-read and mis-construed the plan at Exh.55. It is submitted that the learned Judge has failed to appreciate and erred in holding that sub-plot No.6 out of Final Plot No.68 was not reserved as a common plot or a play-ground for the occupants of Shrinagar Colony. It is submitted that the learned trial Judge has erred in holding that Subhadra Chandulal wife of Sarabhai Girdharlal Patel had not forgone or released her right over the said sub-plot No.6. It is further submitted that the learned trial Judge has erred in holding that Bai Subhadra and/or her heirs had right, title or interest to transfer and/or to dispose of the said sub-plot No.6 which was required to be used as common plot for the occupants of Shrinagar Colony. Therefore, it is requested to allow both the appeals. 5. Appeals are opposed by the learned advocate appearing on behalf of contesting respondents. It is submitted that on appreciation of evidence, when the learned trial Judge has FA/255/1990 8/10 JUDGMENT dismissed the suits, the same are not required to be interfered with. It is submitted that as rightly held by the learned trial Judge that Bai Subhadra had never foregone or released her right over the land in question, therefore the same were rightly transferred in favour of contesting defendants and as the plaintiffs have failed to prove that sub-plot No.6 was required to be used as common plot for the benefit of the occupants of Shrinagar Colony. The learned trial Judge has rightly negatived the relief of permanent injunction in favour of the plaintiffs. Therefore, it is requested to dismiss both the appeals. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. I have gone through the entire judgment and decree passed by the trial court in detail. I have also gone through the Record & Proceedings of the case, and after considering the same, I am of the opinion that the learned trial Judge has not committed any error in holding that so far as plot No.6 of Shrinagar Colony is concerned, Bai Subhadra wife of Sarabhai Girdharlal Patel had not foregone or released her right over the said plot. On appreciation of evidence the trial court has FA/255/1990 9/10 JUDGMENT rightly came to the conclusion that sub-plot No.6 out of Final Plot No.68 was not reserved as a common plot or play-ground for the occupants of Shrinagar Colony. When the plaintiffs have failed to prove that sub-plot No.6 of Final Plot No.68 was reserved as a common plot or a play-ground for the occupants of Shrinagar Colony, when the learned Judge has dismissed the suits of permanent injunction by holding that the plaintiffs are not entitled to the permanent injunction as prayed for, it cannot be said that the trial court has committed any error. On considering the plan at Exh.65 and considering the other documentary evidences produced at Exhs.63, 64, 160, 16, 37, 62, 138, 109 and other documentary evidences at Exhs.135, 136, 137, 162 and 163 and considering the oral evidences of the witnesses examined at Exh.108, 150, 111 and 120, the learned trial court has rightly dismissed the suits refusing to grant permanent injunction in favour of the plaintiffs as prayed for. It cannot be said that the impugned judgment and order/decree and findings of the trial court in any way perverse or contrary to the evidence on record. Considering the above evidences, this Court is also of the view that the plaintiffs have failed to make out a case of permanent injunction and to prove that sub-plot No.6 of Final Plot No.68 was reserved as a common plot or a play-ground for the FA/255/1990 10/10 JUDGMENT occupants of Shrinagar Colony. Considering the above, interference of this Court is not warranted. 8. For the reasons stated above, both the appeals fail and are accordingly dismissed. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/