SCA/7426/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7426 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? ========================================================= ASHOKBHAI CHOTABHAI PATEL P O A HOLDER OF SEJALBEN & 1 - Petitioner(s) Versus RANCHODBHAI VIHABHAI BHARWARD & 1 - Respondent(s) ========================================================= Appearance : MR NIKHIL S KARIEL for Petitioner(s) : 1 - 2. MR HM PARIKH for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/08/2008 ORAL JUDGMENT 1. Rule. Mr.H.M.Parikh, learned Advocate waives service of notice of Rule on behalf of the respondents. With the consent of the learned SCA/7426/2008 2/9 JUDGMENT Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition, the petitioners – original defendants have prayed for an appropriate Writ, order to quash and setting aside the impugned order dated 29.04.2008 passed by the learned Additional District Judge & Presiding Officer, Fast Track Court No.4, Anand in Civil Misc.Appeal No.32 of 2008 by which the learned Appellate Court has allowed the said Appeal by quashing and setting aside the order dated 27.03.2008 passed by the learned trial Court below Exh.5 in Regular Civil Suit No.22 of 2008. 3. Respondents – herein – original plaintiffs had instituted Regular Civil Suit No.22 of 2008 in the Court of learned Civil Court, Khambhat for perpetual injunction restraining the defendants and their servants or agents from entering into suit property and disturbing the possession of the plaintiffs. As per the plaintiffs they were the SCA/7426/2008 3/9 JUDGMENT tenant of the predecessor – in – title of the present petitioners – original plaintiffs and they were running the hotel which is disputed property in the name of Saraswaty Hotel since year 2002 and they have been paying consideration to the tune of Rs.3000/- per year to the said predecessor-in-title. In the said suit the plaintiffs submitted application for interim injunction Exh.5 praying for injunction restraining the defendants from disturbing the possession of the plaintiffs. The learned trial Court initially granted order of status-quo, however, subsequently after hearing the learned Advocates for the parties, the learned trial Court vide order dated 27th March, 2008 dismissed application Exh.5. Being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh.5 dismissing the application for interim injunction, the respondents herein – original plaintiffs preferred Civil Misc.Appeal No.32 of 2008, which came to be heard, decided and disposed of by the learned Additional District Judge and Presiding Officer, Fast Track Court No.4, Anand who by impugned judgment and order dated 29.04.2008 partly allowed the said appeal by SCA/7426/2008 4/9 JUDGMENT quashing and setting aside the order passed by the learned trial Court passed below Exh.5 by directing both the parties to maintain status-quo with respect to disputed property. Being and dissatisfied with the order passed by the learned Appellate Court dated 29.04.2008 passed in Civil Misc.Appeal No.32 of 2008, the petitioners – original defendants have preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Mr.Nikhil Kariel, learned Advocate for the petitioners – original defendants has submitted that the petitioners herein – Sejalben Rameshbhai Halia and Rakesh Ramanbhai Patel are joint owners of the disputed property and said property has been purchased by the petitioners from one Mrs.Girija Babulal Nair by registered sale deed dated 27.02.2004 and said Mrs.Girija Babulal Nair had purchased the said property from one Bharatsinh Amarsinh Chavda by registered sale deed dated 24.07.2002. It is submitted that present dispute is with respect to plot of two vighas where a hotel is situated. It is submitted that respondents herein claimed to be in SCA/7426/2008 5/9 JUDGMENT possession of the disputed land as tenant of Mrs.Girija Babulal Nair, however, no documentary evidence and/or other evidence has been produced by them in support of their tenancy rights. It is submitted that original plaintiffs are head strong persons who had forcible entered into the hotel and were trying to extract some benefit from the petitioners. It is submitted that said two properties had been leased out by the petitioners after they had purchased the property from one Bhupatbhai Laxmandas Parsania vide agreement dated 22.12.2005. Said Bhupatbhai Laxmandas Parsania was running hotel in the name of Shiv Krupa Hotel and later on the said property was leased to one Vinodbhai Gagjibhai Bharward who had started running the hotel in the name of Saraswaty hotel and vide notice dated 06.11.2006 Sub-Divisional Magistrate, Petlad had called upon said Vinodbhai Gagjibhai Bharwad to produce any license to run the hotel under the Bombay Police Act. It was further pointed out that since said hotel was being run without any license by said Vinodbhai Gagjibhai Bharward, Sub Divisional Magistrate vide order dated 14.11.2006 directed to SCA/7426/2008 6/9 JUDGMENT close down the hotel. It is submitted that disputed property was not in possession, occupation of the present respondents at all and in view of the above respondents could not have been in possession of the hotel during that period and therefore, their contention that they were continuously in occupation of the hotel from 2002 onwards is prima-facie proved to be false. It is submitted therefore, the Appellate Court has materially erred in directing both the parties to maintain status-quo. It is submitted that by aforesaid order it is likely to further complicate the matter and even further complication. It is submitted that on appreciation of evidence the learned trial Court rejected the application Exh.5 which was not required to be interfered with by the learned Appellate Court. Therefore, it is requested to allow present Special Civil Application and quash and set aside the order passed by the learned Appellate Court and to restore the order passed by the learned trial Court passed below Exh.5. 5. The petition is opposed by Mr.H.M.Parikh, learned Advocate for the respondents – original SCA/7426/2008 7/9 JUDGMENT plaintiffs. It is submitted that when the respondents – original plaintiffs are in possession of suit land / hotel in question and prima-facie believing the same when the learned Appellate Court has partly allowed the appeal by directing both the parties to maintain status-quo, it cannot be said that the learned Appellate Court has committed any error which calls 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. 6. Heard the learned Advocates appearing on behalf of the respective parties. 7. At the outset it is to be noted that the petitioners- original defendants are owners of the land in question. The respondents – original plaintiffs claim to be in possession of the suit land as tenant of predecessor -in -title of Mrs.Girijaben Nair since 2002. However, the plaintiffs have miserably failed to produce any supporting evidence to that effect. Not a single document has been SCA/7426/2008 8/9 JUDGMENT produced in support of the tenancy rights of the plaintiffs. Even it is the case of the plaintiffs that they were running hotel; they must be having valid license under the Bombay Police Act which is not produced by the plaintiffs. On the contrary it has come on record that even proceedings were initiated by the Sub-Divisional Magistrate in the year 2006 against one Vinodbhai Gagjibhai Bharwad and order came to be passed by the Sub-Divisional Magistrate directing him to close down the hotel as he was not having license. Under the circumstances case on behalf of the plaintiffs that they are in possession of the disputed land and running hotel since 2002 cannot be believed. Even on the basis of Panchnama it is not borne out that the plaintiffs are in possession of the disputed land as sought to be contended on behalf of the respondents – original plaintiffs. Under the circumstances when the respondents – original plaintiffs have failed to establish their possession and/or under what right they claim to be in possession of the land in question and/or they have failed to produce any evidence in support of their claim as a tenant, the SCA/7426/2008 9/9 JUDGMENT learned Appellate Court has materially erred in directing both the parties to maintain status-quo and interfering with the order passed by the learned Trial Court below Exh.5. Under the circumstances, impugned order passed by the learned Appellate Court deserves to be quashed and the order passed by the learned trial Court passed below Exh.5 deserves to be restored. 8. For the reasons stated above, the petition succeeds. The impugned order dated 29.04.2008 passed by the learned Additional District Judge & Presiding Officer, Fast Track Court No.4, Anand in Civil Misc.Appeal No.32 of 2008 is hereby quashed and set aside and the order dated 27.03.2008 passed by the learned trial Court below Exh.5 in Regular Civil Suit No.22 of 2008 is hereby restored. Rule is made absolute to the aforesaid extent. However, there shall be no order as to costs. [M.R.Shah,J.] satish