SCA/2382/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2382 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? ========================================================= ANILBHAI MANJIBHAI SOLANKI - Petitioner(s) Versus NARENDRA VASTARAM JETHVA & 3 - Respondent(s) ========================================================= Appearance : MR NIRAV C THAKKAR for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. DS AFF.NOT FILED (N) for Respondent(s) : 1.2.1, 1.2.3, 1.2.4, 1.2.5,1.2.6 MR ASHUTOSH R BHATT for Respondent(s) : 1.2.2 NOTICE SERVED for Respondent(s) : 1.2.3, 1.2.4, 1.2.5,1.2.6 UNSERVED-EXPIRED (N) for Respondent(s) : 1.2.7 MR TUSHAR L SHETH for Respondent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/08/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed SCA/2382/2007 2/10 JUDGMENT for an appropriate order quashing and setting aside the order dated 19.12.2006 passed by the learned Additional District Judge and Presiding Officer, Fast Track Court, Rajkot in Civil Misc.Appeal No.74 of 2002 by which the learned Appellate Court has allowed the said appeal by quashing and setting the order dated 20.06.2002 passed by the learned trial Court below Exh.5 in Regular Civil Suit No.753 of 2002. 2. The petitioner herein - original plaintiff had instituted Regular Civil Suit No.753 of 2002 in the Court of learned Principal Civil Judge (S.D.), Rajkot against the respondents herein for permanent injunction restraining the defendant Nos.1 and 2 from entering into suit plot No.8 without due process of law. It was the case on behalf of the plaintiff that suit plot No.8 of Survey No.451 was jointly owned by defendant No.1- Vastaram Narotamdas and deceased Kantilal Devshibhai Solanki, cousin brother of the plaintiff and before 31 years of the suit, defendant No.1 gave up his right, title and interest in the suit plot No.8 in favour of deceased Kantilal. Against that Kantilal gave up his right, title and interest in Plot No.18 in favour of Vastaram SCA/2382/2007 3/10 JUDGMENT Narotamdas which was jointly owned by them. Therefore, as per the plaintiff, deceased – Kantilal become exclusive owner of the suit plot No.8. Said Kantilal had given the possession of the suit plot No.8 to the plaintiff before 30 years of the suit. As per the plaintiff, he has built two shops, three godown, garage, latrine, bathroom and compound wall at his own expenses and he is in continues peaceful possession of the said plot. As per the plaintiff he is doing business in the name of Jail Jalaram Bhandar and keeping cement in the godown of suit plot. As per the plaintiff, defendant No.1 wants to sell the suit plot to defendant No.2 and was trying to enter into suit plot by force and without due process of law and defendant Nos.1 and 2 have threatened plaintiff on 19.05.2002 that they shall start construction in the suit plot and therefore, the petitioner – plaintiff preferred aforesaid suit and in the said suit the plaintiff filed application for interim injunction at Exh.5. The learned trial Court vide order dated 20.06.2002 allowed the application Exh.5 restraining original defendant Nos.1 and 2 from entering into said property i.e. plot No.8 and SCA/2382/2007 4/10 JUDGMENT further restraining defendant Nos.1 and 2 from further obstructing the plaintiff with his possession and without due process of law they shall not enter in the suit property. Being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh.5, the respondents herein – original defendant Nos.1 and 2 preferred Civil Misc.Appeal No.74 of 2002 before the learned Appellate Court and the learned Additional District Judge and Presiding Officer, Fast Track Court, Rajkot vide impugned order dated 19.12.2006 allowed the said appeal by quashing and setting aside the order passed by the learned trial Court below Exh.5. Being aggrieved and dissatisfied with the judgment and order passed by the learned Additional District Judge and Presiding Officer, Fast Track Court, Rajkot dated 19.12.2006 passed in Civil Misc.Appeal No.74 of 2002, the petitioner – plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.Nirav Thakkar, learned Advocate appearing on behalf of the petitioner – plaintiff has submitted that plot No.8 of Survey No.451 and plot No.18 were SCA/2382/2007 5/10 JUDGMENT jointly purchased by cousin brother of the petitioner – plaintiff – Kantilal Devshi Solanki and defendant No.1 – Vastaram Naranbhai Jethva. It is submitted that said defendant No.1 – Vastaram Naranbhai Jethva relinquished his right from plot No.8 in favour of Kantilal and in turn Kantilal relinquished his right from plot No.18 in favour of respondent No.1 – Vastaram Naranbhai Jethva. Thus both the parties have become independent owner of respective plots. It is submitted that in the year 1978, by consent of the cousin brother of the petitioner, the petitioner was put in possession of the plot No.8 for his exclusive use. Since then the petitioner has been using the said plot and has put up construction. It is submitted that since then the petitioner is in possession of the suit plot no.8 and therefore, the learned Appellate Court has materially erred in quashing and setting aside the order passed below Exh.5 and refused to grant injunction. It is submitted that as such even respondent No.1- original defendant No.1 has suppressed the fact that in the year 1981 a Civil Suit No.463 of 1981 was filed by member of HUF of respondent No.1 before the learned SCA/2382/2007 6/10 JUDGMENT Civil Judge, Rajkot against the deceased Kantilal Devshibhai Solanki praying that he be restrained from entering into plot No.8 and further be restrained from making any construction and said suit was dismissed. It is submitted that therefore, when the petitioner – plaintiff is in possession of plot No.8, the learned Appellate Court has materially erred in refusing to grant injunction by quashing and setting aside the order passed below Exh.5. It is submitted that there were public notice and counter public notice in the local newspaper and as defendants are threatening to dispossess the petitioner from plot No.8 without following and due process of law, it is requested to allow the present Special Civil Application by quashing and setting aside the order passed by the learned Appellate Court and restore the order passed by the learned trial Court passed below Exh.5. 4. The petition is opposed by Mr.Ashutosh Bhatt, learned Advocate for respondents. It is submitted that as rightly held by the learned Appellate Court defendant No.1 is co-owner and same is borne out from documentary evidence also and SCA/2382/2007 7/10 JUDGMENT therefore, when defendant No.1 is co-owner and he cannot be restrained from entering into suit property. It is submitted that as such there was no suppression at all as the Suit of 1981 has not been dismissed on merits but same was dismissed for default and that too against deceased Kantilal and not against the plaintiff and therefore, there is no suppression at all. It is further submitted that there are documentary evidence and all throughout name of defendant No.1 is mentioned as co-owner along with deceased Kantilal and it is not shown how and under what title the petitioner claims to be in possession of the suit plot. Under the circumstances, it is submitted that on appreciation of evidence when the learned Appellate Court has allowed the appeal by quashing and setting aside the order passed by the learned trial Court, same is not required to be interfered with by 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. 5. Heard the learned Advocates appearing on behalf of the respective parties. SCA/2382/2007 8/10 JUDGMENT 6. It appears from the judgment and order passed by both the Courts below that suit property was purchased by deceased Kantilal and defendant No.1 jointly in the year 1964. In the property card and relevant record, suit land is in the joint name of deceased Kantilal and defendant No.1. Thus defendant No.1 can be said to be co-owner of the plot in question. Original plaintiff has not been able to even prima-facie show his title over the land in question. On the other hand there is documentary record suggesting that defendant No.1 is co-owner. It it the contention on behalf of the plaintiff that by mutual agreement defendant No.1 relinquished his right from plot No.8 in favour of deceased Kantilal and similarly, deceased Kantilal relinquished his right from plot No.18 in favour of defendant No.1. Now aforesaid is dispute which is required to be considered at trial. As stated above, the plaintiff has not been able to even prima facie show how and under what right the petitioner – plaintiff claims to be in possession of the land. Considering above when defendant No.1 is all throughout is shown to be co- SCA/2382/2007 9/10 JUDGMENT owner of the land in question, he cannot be restrained from entering his own land. Considering above, when the learned Appellate Court has allowed the appeal by quashing and setting aside the order passed by the learned trial court below Exh.5 by which the learned trial court had restrained defendant No.1 from entering into suit land, it cannot be said that the learned Appellate Court has committed any error and/or illegality which requires to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. This is a petition under Article 227 of the Constitution of India and this Court is not required to re-appreciate the evidence on record. There is no jurisdictional error much less than error of law shown to have been committed by the learned Appellate Court. Considering above, it cannot be said that the order passed by the learned Appellate Court deserves to be interfered with. 7. For the reasons stated above, the petition fails and deserves to be dismissed and accordingly it is dismissed. Notice discharged. Ad-interim relief, if any, stands vacated. SCA/2382/2007 10/10 JUDGMENT [M.R.Shah,J.] satish