Laxmiben Surabhai Bharwad vs Melabhai Kanubhai Senva
2021 Latest Caselaw 741 Guj

       C/SCA/9923/2018                              JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 9923 of 2018


FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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     Whether Reporters of Local Papers may be allowed
 1                                                              NO
     to see the judgment ?

 2 To be referred to the Reporter or not ?                     YES

     Whether their Lordships wish to see the fair copy
 3                                                              NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution          NO
   of India or any order made thereunder ?

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         LAXMIBEN SURABHAI BHARWAD & 1 other(s)
                            Versus
           MELABHAI KANUBHAI SENVA & 2 other(s)
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,2
MR. MRUGESH A BAROT(6709) for the Petitioner(s) No. 1,2
MR RUTURAJ NANAVATI(5624) for the Respondent(s) No. 1,2
MR. ZALAK B PIPALIA(6161) for the Respondent(s) No. 1,2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                         Date : 19/01/2021

                         ORAL JUDGMENT

1. By this petition under Articles 226 and 227 of the Constitution of India the petitioners - original defendant Nos. 1 and 2 have assailed the order dated 04.04.2018, passed by the

C/SCA/9923/2018 JUDGMENT

learned Judicial Magistrate First Class, Sanand below exh. 18 in Regular Civil Suit No. 10 of 2018, whereby, the learned trial Judge has rejected the application exh. 18 which was filed by the petitioners to get the land measured by the District Inspector Land Record (DILR).

2. Rule. Learned advocate Mr. Zalak Pipalia waives service qua respondent Nos. 1 and 2 - original plaintiffs. Though notice issued by this Court is duly served, nobody has put in appearance for the respondent No. 3 - original defendant No. 3. Accordingly, since the notice is duly served upon respondent No. 3 and the present respondent Nos. 1 and 2 are stated to have been the only contesting respondents, the matter is heard finally today.

3. Heard, learned advocate Mr. Vimal Purohit for the petitioners - original defendant Nos. 1 and 2 and learned advocate Mr. Zalak Pipalia, learned advocate for the respondent Nos. 1 and 2 - original plaintiffs.

3.1 The learned advocate for the petitioners has vehemently and fervently argued that, in the present case, the learned trial Court has dismissed the aforesaid application filed by the petitioners to get the measurement of the land bearing survey No. 347/4 by the DILR. It is submitted that only on the ground that the petitioners have failed to show the relevancy with regard to the disputed land in the suit and the land for which, the petitioners wanted to have the measurement report from the DILR. It is submitted though the petitioners had very well taken a stand in their written statement in the suit, the learned trial Judge has not considered the same and has rejected the application of the petitioners without due application of mind. It is submitted

C/SCA/9923/2018 JUDGMENT

that the petitioners are the owners of the land bearing survey No. 347/4 and the DILR is the competent authority to measure the land and thereby, demark the factual position, and so as to have correct picture on record, application exh. 18 was preferred, however, the same was rejected. Accordingly, it is urged that present petition may be allowed as prayed for.

4. Per contra, learned advocate Mr. Zalak Pipalia for the respondent Nos. 1 and 2 - original plaintiffs, while opposing the present petition and the stand taken by and the arguments canvassed by the learned advocate for the petitioners, submitted that the learned trial Court has rightly rejected the the application (exh. 18) of the present petitioners - original defendant Nos. 1 and 2 since the land for which such an application is preferred for getting the same measured by the DILR has no nexus with the subject land. It is further submitted that the petitioners cannot be permitted to create any new evidence, which can be used in another litigation. It is further submitted that it is the plaintiffs who have to prove their case and the defendants cannot make such counter claim or ask for such a relief, which is not even permissible under the law. It is submitted that the learned trial Judge has, after due application of mind, has rightly rejected the application exh. 18 and there being no infirmity and perversity in the impugned order, it is urged that present petition may not be entertained and requested to reject the same.

5. Regard being had to the submissions advanced by the learned advocates for the respective parties and having gone through the papers available on record, it appears that the original plaintiffs - respondent Nos. 1 and 2 herein have filed the

C/SCA/9923/2018 JUDGMENT

suit in question qua the agriculture land bearing block / survey No. 396/4, whereas, the defendant Nos. 1 and 2, the petitioners herein, vide aforesaid application exh. 18 had prayed for to have the measurement report of DILR qua land bearing block / survey No. 347/4 and requested to have the same on record of the suit in question. Thus, apparently, the disputed land and the land for which the measurement is requested to be done through DILR, are different and appears to have no nexus between the same. A perusal of the impugned order reveals that the learned trial Judge has also made such observations besides, the fact that the petitioners have also failed to prove and/or to bring on record as to connection between the two lands. It is also observed by the learned trial Judge in the impugned order that a suit is pending qua the land for which the defendants have made their claim. Thus, when the land for which the suit is filed and the land for which the application exh. 18 was filed by the defendants are different and apparently, there is no nexus between them and when the defendants - petitioners have failed to show anything on record, and when the learned advocate for the petitioners has failed to substantiate the claim of the defendants, in the considered opinion of this Court, there appears no infirmity, perversity and/or capricious arbitrariness which requires interference at the hands of this Court.

6. In the backdrop as aforesaid, present petition fails and is dismissed accordingly, being devoid of any merits. Rule is discharged. No order as to costs. Interim relief, if any, shall stand vacated forthwith.

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