Mehboobkhan Rehmatkhan Pathan vs Hajiani Aayesha Haji Mohammad ...
2021 Latest Caselaw 569 Guj

        C/FA/2186/2010                                  ORDER




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/FIRST APPEAL NO. 2186 of 2010
                          With
       CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
            In R/FIRST APPEAL NO. 2186 of 2010

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            MEHBOOBKHAN REHMATKHAN PATHAN
                             Versus
           HAJIANI AAYESHA HAJI MOHAMMAD UMARJI
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Appearance:
MR DILIP B RANA(691) for the Appellant(s) No. 1
for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
MR KV SHELAT(834) for the Defendant(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                         Date : 18/01/2021

                           ORAL ORDER

1. The Court is convened through video conference.

2. This first appeal is filed by the appellant - original plaintiff being aggrieved and dissatisfied with the judgment and order dated 18.11.2009 passed by the learned Judge, Court No. 19, City Civil Court, Ahmedabad in Civil Suit No. 5448 of 1993.

3. Heard, the learned advocates for the respective parties through video conference.

4. At the outset, the learned advocates for the respective parties jointly submitted that parties have arrived at an amicable settlement and in support of the same, consent terms is also place on record. It is submitted that the parties shall abide by

C/FA/2186/2010 ORDER

the consent terms and accordingly, present appeal may be disposed of in view of the consent terms place on record.

5. The Court has gone through the consent terms, for ready perusal, it is extracted herein below:

"CONSENT TERMS

The Parties to this First Appeal submit their Consent Terms as follows:-

1. The Appellant is the owner of the property bearing survey No. 590 and the Respondent is the co-owner of the property being survey No. 623 & 622/A at Vankarvas, near piranpir Dargah, Raykhad, Ahmedabad and there is a blind wall on the southern side of the survey No. 590 of the Appellant i.e. between survey No. 590 of the Appellant and 623 of the Respondent. The Appellant preferred Civil Suit No. 5448 of 1993 against the Respondent - Defendants claiming easementary rights from the adjacent survey number 623 of the Resondent, which suit was dismissed by the Ld. trial Court and thereafter the Appellant preferred First Appeal No. 2186 of 2010 before the Hon'ble High Court of Gujarat challenging the judgment passed by the Ld. trial Court, which First Appeal was admitted by the Hon'ble High Court of Gujarat and is pendning for final adjudication.

2. The Respondents - legal heirs of deceased Hajiani Aayisha Haji Mohammed Umarji preferred Civil Application No. 3 of 2019 in First Appeal No. 2186 of 2010 before the Hon'ble High Court, which was disposed of vide order dated 11.12.2019 on the statement and undertaking filed by the Appellant that the Appellant plaintiff shall not demolish nor will make construction in the property belonging to the Appellant in such a way, which would adversely affect disputed wall between city survey Nos. 623 and 590 till final disposal of the main First Appeal.

3. The legal heirs of deceased Hajiani Aayisha Haji Mohammed Umarji against preferred Civil Application No. 1 of 2020 in First Appeal No. 2186 of 2010 before the Hon'ble High Court on 20.08.2020 and advance copy was served on the advocate appearing for the Appellant, which Civil

C/FA/2186/2010 ORDER

Application is also pending for hearing. It is submitted that the construction is in progress on the property of the Appellant on survey No. 590 and the second party has preferred civil application for stay and appropriate direction in the pending appeal.

4. During the pendency of the proceeding, the settlement has been arrived at between the parties wherein the Appellant has agreed that he and/or his transferee-assignee will not claim any easementary right at present or in future for the newly constructed property in survey no. 590, such as right of light and air, and/ or right of way from the survey No. 623 and 622/A i.e. the property of the Respondents and the appellant agrees and undertakes that he or his subsequent transferees will not place any windows, doors, apertures or balcony facing towards the property of the Respondents. The Respondents has agreed and consented for the construction by Appellant in his land and therefore the Appellant waives his easementary rights facing towards survey No. 623 and 622/A for which the First Appeal was filed. The Appellant also agree to confirm the judgment and decree of Ld. Civil Court, Ahmedabad in Civil Suit no. 5448 of 1993 with modifications as per the above consent terms.

5. The Respondent has signed this consent terms for himself and on behalf of other co-owners being legal heirs of deceased Hajiani Aayisha Haji Mohammed Umarji who are party to the proceedings with authority, in the appeal pending before the High Court of Gujarat.

Accordingly, the Appellant agrees to modify the judgment and decree of the Ld. Trial Court and to pass the consent decree in terms of above consent terms in First Appeal No. 2186 of 2010 pending before the Hon'ble High Court of Gujarat and Civil Application No. 1 of 2020 (for stay and appropriate directions) filed on 24.08.2020 be disposed of in view of consent decree. The parties to these appeal also agree that the above consent terms and the consent decree shall also be binding to their successors and transferees.

6. The parties agree and undertakes to abide by these consent terms and request the Hon'ble Court to pass consent decree in these First Appeal in terms of these consent terms."

C/FA/2186/2010 ORDER

6. In the wake of aforesaid, as the parties have arrived at an amicable settlement and when the learned advocates for the parties have jointly requested to dispose of the appeal in view of the consent terms arrived at between the parties, present appeal is hereby disposed of in terms of the consent terms, as extracted herein above. The parties are directed to scrupulously abide by the aforesaid consent terms. Decree shall follow the consent terms.

6.1 R&P be returned to the concerned trial Court forthwith.

6.2 In view of disposal of the main appeal, civil application therein for stay also stands disposed of.

[ Dr. Ashokkumar C. Joshi, J. ] hiren