AO/57/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 57 of 2008 With CIVIL APPLICATION No. 2225 of 2008 In APPEAL FROM ORDER No. 57 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 ? 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 ========================================================= HIMANSHUBHAI BABULAL PATEL & 1 - Appellant(s) Versus ARJANBHAI LAXMANBHAI RAMANI & 8 - Respondent(s) ========================================================= Appearance : MR AJ SHASTRI for Appellants. MR MAHENDRA K PATEL for Respondent(s) : 1-6 None for Respondent(s) : 7 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/09/2008 ORAL JUDGMENT AO/57/2008 2/7 JUDGMENT 1. Present appeal from order is filed by the appellants-original defendants No.3 and 4 under Order 43 Rule 1 of the Code of Civil Procedure, for quashing and setting aside the impugned order dated 4.10.2007 passed by the learned 7th Additional Senior Civil Judge & JMFC, Surat passed below Exh.5 in Special Civil Suit No.51 of 2007. 2. Respondents No.1 to 6 herein-original plaintiffs had instituted Special Civil Suit No.51 of 2007 in the Court of learned 7th Principal Civil Judge (S.D.), Surat for declaration and permanent injunction against the appellants and other defendants with respect to the land ad-measuring 2950 sq.yds., of Block No.133 situated at Village Laskana, Taluka Kamrej, District Surat. In the said suit, the original plaintiffs submitted application for interim injunction below Exh.5 restraining the defendants, their agents and servants from obstructing and/or interfering with the possession of the suit land by the plaintiffs and restraining them from transferring, assigning and/or alienating the property in question in any manner whatsoever. In the said suit the original defendants No.3 and 4 – appellants herein also submitted counter-claim at Exh.26 and AO/57/2008 3/7 JUDGMENT prayed for counter injunction. The learned trial court by impugned order allowed the application Exh.5 and dismissed the application of the appellants at Exh.26 which was for p[permanent injunction. 2.1 Being aggrieved and dissatisfied with the order passed below Exh.5, the appellants herein-original defendants No.3 and 4 have preferred present appeal from order and the civil application for interim relief therein. 3. At the outset it is required to be noted that the appellants herein-original defendants No.3 and 4 have not challenged the order passed below Exh.26 which was for counter injunction and have challenged only the order passed below Exh.5. 4. Shri A.J.Shastri, learned advocate appearing on behalf of the appellants herein-original defendants No.3 and 4 has vehemently submitted that the learned trial court has materially erred in not properly appreciating the decision of the Hon'ble Supreme Court in the case of MAHARWAL KHEWAJI TRUST (REGD.) FARIDKOT vs BALDEV DASS reported in AIR 2005 SC 104. It is AO/57/2008 4/7 JUDGMENT submitted that by granting the relief in Exh.5 application, the same would change the status of the appellants' portion of the land. It is submitted that the appellants are in possession of the portion of the land and therefore the impugned order passed by the learned trail court passed below Exh.5 requires to be quashed and set aside. It is further submitted that the learned trial court has materially erred in not properly appreciating and considering the documents dated 3.5.2004 and 9.1.2006 produced at Mark 24/12. By making above submissions, it is requested to allow the present appeal from order. It is further submitted by Shri Shastri, learned advocate that at least the original plaintiffs are also required to maintain status-quo otherwise nature of the suit property would be changed. 5. Shri Mahendra Patel, learned advocate appearing on behalf of the respondents No.1 to 6 herein-original plaintiffs, while opposing the present appeal from order, has submitted that, in the facts and circumstances of the case and on appreciation of evidence the learned trial court has disbelieved the possession of the appellants and therefore the learned trial court has rightly allowed the application Exh.5 and dismissed the application Exh.26 AO/57/2008 5/7 JUDGMENT which was submitted by the appellants for counter injunction. It is further submitted by him that as such the appellants herein-original defendants No.3 and 4 have not challenged the order passed below Exh.26 by which the learned trial court has dismissed the said application submitted by the appellants for counter injunction. Therefore, it is requested to dismiss the appeal from order. 6. Heard the learned advocates appearing on behalf of the respective parties and the impugned order passed by the learned trial court below Exh.5 and Exh.26. It prima facie appears to the Court that the said order does not warrant any interference by this Court. The learned trial court has appreciated the two documents dated 3.5.2004 and 9.1.2006 upon which reliance has been placed by the appellants, and on appreciating the same, the learned trial court has observed and held that the said documents seems to be between the brother in his individual capacity and there are serious disputes with respect to the said documents. Considering the fact that the land in question is in the name of original plaintiffs and even the Panchnama prepared by the Court Commissioner, the possession of the original plaintiffs is AO/57/2008 6/7 JUDGMENT established. There is no documentary evidences by which it can be said that the defendants No.3 and 4 have become the absolute owner. Considering the above, when the learned trial court has allowed the application Exh.5 restraining the defendants from obstructing and/or interfering with the possession of the plaintiffs, the same does not require any interference of this Court. 7. As stated above, the appellants have not challenged the order passed below Exh.26 by which the learned trial court has dismissed the application submitted by the appellants for counter injunction. Therefore, so far as possession aspect is concerned, the appellants have no case. However, the learned advocate appearing on behalf of the appellants is justified in making a request that even the original plaintiffs are also required to maintain status-quo. Meaning thereby, during the pendency of the suit, they may not transfer the property in question. 8. Under the circumstances and for the reasons stated above, the appeal from order deserves dismissal and is accordingly dismissed. However, while dismissing the appeal from order, it is AO/57/2008 7/7 JUDGMENT directed that the respondents No.1 to 6 herein -original plaintiffs shall also maintain status-quo with respect to the nature of the suit property and they may not transfer/alienate the land in question till the final disposal of the aforesaid suit. In the facts and circumstances of the case, the learned trial court is directed to decide and dispose of the suit as expeditiously as possible but not later than 31st December, 2009. All concerned are directed to co- operate the trail court in early disposal of the suit and within the stipulated time as stated hereinabove. The parties to complete the pleadings within four months from today. 9. With these, appeal from order is dismissed with no order as to costs. 10. In view of dismissal of appeal from order order, no order in civil application. Registry is directed to send the writ of this order to the trial court immediately. ( M.R. SHAH, J. ) syed/