SCA/3387/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3387 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 ? ========================================================= RUQAIYABIBI W/O AHMED ISMAIL PITTAL D/O MUSA MOHD.INDARJI - Petitioner(s) Versus AMINABIBI D/O HAJI YUSUF ISMAIL MUGHAL & 5 - Respondent(s) ========================================================= Appearance : MR MA KHARADI for Petitioner(s) : 1, MR PM DAVE for Respondent(s) : 1 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 07/07/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant has prayed for appropriate writ, order and/or direction, quashing and setting aside the judgement and order SCA/3387/2008 2/6 JUDGMENT dtd.4/1/2008 passed by the learned Presiding Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil Appeal No.85 of 2006 in dismissing the same and confirming the order passed below application Ex.5 dtd.30/9/2006 in Civil Suit No.175 of 2006. 2. The respondents – original plaintiffs have filed Regular Civil Suit No. 175 of 2006 in the court of learned Principal Senior Civil Judge, Godhara for declaration and permanent inunction restraining the petitioner – original defendant from putting up construction on the road. In the said suit, the respondents – original plaintiffs submitted application Ex.5 and the learned trial court by order dtd.30/9/2006 allowed the application Ex.5 by directing the defendant to maintain status-quo in respect of the disputed land and dismissed the counter interim application submitted by the defendants. Being aggrieved by and dissatisfied with the order passed by the trial court dtd.30/9/2006 passed below application Ex.5 and the counter application submitted by the defendant, the petitioner – original defendant filed Misc.Civil Appeal No.85 of 2006 before the appellate court, which came to be heard by the learned Presiding Officer, FTC No.2, SCA/3387/2008 3/6 JUDGMENT Panchmahals at Godhara, who vide his order dtd.4/1/2008 partly allowed the said appeal by directing the parties, more particularly the petitioner to put up the construction only as per the permission and plan accorded by the Nagar Palika and confirmed the order passed by the trial court so far as other order is concerned. Being aggrieved by and dissatisfied with the order dtd.4/1/2008 passed by the learned Presiding Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil Appeal No.85 of 2006, the petitioner – original defendant has preferred present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.M.A. Kharadi, learned advocate appearing on behalf of the petitioner has vehemently submitted that both the courts below have materially erred in restraining the petitioner from putting up construction on the land in question, as the same is not road. It is further submitted that the courts below have committed an error in not considering the report and map prepared by the Court Commissioner. It is further submitted that both the courts below have failed to appreciate and consider the fact that in the records maintained by the City Survey Superintendent, the land between two properties is SCA/3387/2008 4/6 JUDGMENT shown to be of the ownership of the petitioner. Submitting accordingly it is prayed to allow the present petition. 4. The petition is opposed by Mr.P.M. Dave, learned advocate appearing on behalf of the respondents – original plaintiffs. It is submitted that there are concurrent findings of facts of both the courts below, which are not required to be interfered with by this Court in exercise of the powers under Article 227 of the Constitution of India. It is submitted that as such the appellate court has rightly passed the order allowing the parties to put up the construction as per the plan and permission accorded by the Nagar Palika. It is submitted that even otherwise, the defendant cannot put up any construction de-hors the plan and permission accorded by the Nagar Palika. Submitting accordingly, it is requested to dismiss the present Special Civil Application. 5. Heard the learned advocate appearing on behalf of the respective parties. 6. Considering the impugned order passed by the appellate SCA/3387/2008 5/6 JUDGMENT court, it appears that the appellate court has tried to balance the situation and has directed the parties to put up construction only as per the plan and permission accorded by the Nagar Palika and the same is not required to be interfered with in exercise of the powers under Article 227 of the Constitution of India. With respect to the disputed land, there are concurrent finding of facts recorded by both the courts below, which are not required to be interfered with in exercise of the powers under Article 227 of the Constitution of India. Even otherwise, considering the prima facie case and the balance of convenience, if the petitioner – original defendant is permitted to put up construction on the disputed land, the suit would become infructuous and there will be further multiplicity of proceedings and to avoid the same, when the appellate court has passed the order directing the parties, more particularly the defendant, to put up construction as per the plan and permission accorded by the Nagar Palika, it cannot be said that the learned appellate court has committed any error which calls for interference of this Court in exercise of the powers under Article 227 of the Constitution of India. Under the circumstances, no interference is called SCA/3387/2008 6/6 JUDGMENT for. 7. For the reasons stated above, the petition fails and deserves dismissal and is accordingly dismissed. Notice is discharged. [M.R. SHAH, J.] rafik