SCA/472/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 472 of 2008 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 ? ========================================================= KUBERSHWAR MAHADEV NA VAHIVAT KARTA - PUJARI MAHANT SHREE - Petitioner(s) Versus MATA NARMADE HAR SEVA TRUST KARNALI, TAL. DABHOI & 2 - Respondent(s) ========================================================= Appearance : MR PJ VYAS for Petitioner(s) : 1, MR BHARAT T RAO for Respondent(s) : 1 - 3 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/07/2008 ORAL JUDGMENT 1. RULE. Mr.B.T. Rao, learned advocate appearing on behalf of the respondents. 2. With the consent of the learned advocate appearing on SCA/472/2008 2/5 JUDGMENT behalf of the respective parties, the matter is taken up for final hearing today. 3. The petitioner, by way of filing present petition under Article 227 of the Constitution of India, has prayed for appropriate writ, order and/or direction quashing and setting aside the judgement and order dtd.28/11/2007 passed by the learned Additional District Judge and Presiding Officer, FTC No.7, Vadodara in Misc.Civil Appeal No.250 of 2006, in allowing the said appeal and quashing and setting aside the order passed below application Ex.5. 4. The petitioner herein – original plaintiff filed Regular Civil Suit No.25 of 2005 in the court of learned Civil Judge (J.D.), Dabhoi for declaration and injunction against the respondents – original defendants restraining them from putting any unauthorised construction on the land other than the land allotted to them. It was the contention on behalf of the petitioner – plaintiff that Old Survey No.45 of Vadodara State came to be numbered as Survey No.25 and the same was constituted as Block No.495 under the Fragmentation Act, situated at village Karnali, Taluka Dabhoi, District ; Vadodara. It is also the contention on behalf of the plaintiff that so far as the respondents – SCA/472/2008 3/5 JUDGMENT defendants are concerned, they were allotted and/or they were entitled to continue in possession of land admeasuring 54 X 41 sq.feet and 18 X 31 sq.feet of Block No.495 only and they had no right to put up construction on any other land, and as the respondents started putting unauthorised construction towards Northern and Western sides of the Bhataji's house, the aforesaid suit came to be filed. In the said suit, application Ex.5 for interim injunction was submitted by the plaintiff and the learned trial court, by order dtd.26/6/2006 granted the said application. Being aggrieved by the order passed by the trila court below application Ex.5 in Regular Civil Suit No. 25 of 2005 dtd.26/6/2006, the respondents – original plaintiff filed Misc.Civil Appeal No.250 of 2006 before the District Court, Vadodara, which came to be heard by the learned Additional District Judge and Presiding Officer, FTC No.7, Vadodara, who vide his judgement and order dtd.28/11/2007 allowed the said appeal by quashing and setting aside the order passed by the learned Principal Civil Judge, Dabhoi below application Ex.5 dtd.26/6/2006 in Regular Civil Suit No. 25 of 2005. Being aggrieved by and dissatisfied with the order passed by the appellate SCA/472/2008 4/5 JUDGMENT court, the petitioner – original plaintiff has preferred present petition under Article 227 of the Constitution of India. 5. Mr.P.J. Vyas, learned advocate appearing on behalf of the petitioner – original plaintiff has vehemently submitted that so far as the respondents – defendants are concerned, they are entitled to occupy the possession of land admeasuring 54 X 41 sq.feet and 18 X 31 sq.feet only, of Survey No.25, Block No.495 of village Karnali and therefore, they have no right to put up any construction on any land other than the aforesaid land and therefore, the learned appellate court has committed an error in dismissing the application Ex.5. 6. Mr.B.T. Rao, learned advocate appearing on behalf of the respondents - original defendants is not in a position to dispute the facts that the respondents – original defendants are entitled to retain possession of land admeasuring 54 X 41 sq.feet and 18 X 31 sq.feet of Survey No.25, Block No.495 only of village Karnali, Taluka Dabhoi, District ; Vadodara. 7. In view of the above, the respondents – original defendants cannot put up any construction on the land other than the aforesaid land. SCA/472/2008 5/5 JUDGMENT 8. In view of the above, present petition succeeds. The impugned judgement and order passed by the learned Additional District Judge and Presiding Officer, FTC No.7, Vadodara in Misc.Civil Appeal No.250 of 2006 is hereby set aside and the respondents – original defendants, their servants and agents are restrained from putting any construction on the land other than land admeasuring 54 X 41 sq.feet and 18 X 31 sq.feet of Block No.495 only of Survey No.25, Block No.495 of village Karnali, Taluka Dabhoi, District Vadodara. Rule is made absolute accordingly. In the facts and circumstances of the case there shall be no orders as to costs. [M.R. SHAH, J.] rafik