Sarojben Vikrambhai Talpada vs Baajiben Himatbhai Thakor
2021 Latest Caselaw 9936 Guj

       C/SA/125/2021                                ORDER DATED: 29/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/SECOND APPEAL NO. 125 of 2021
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                   In R/SECOND APPEAL NO. 125 of 2021
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                       SAROJBEN VIKRAMBHAI TALPADA
                                  Versus
                        BAAJIBEN HIMATBHAI THAKOR
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Appearance:
MR CP CHAMPANERI(5920) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,2.1,2.2,3,3.1,3.2,3.3,4
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                             Date : 29/07/2021
                              ORAL ORDER

Heard learned advocate Mr. C. P. Champaneri for the appellant.

2. The present Second Appeal is directed against judgment and order dated 30th April, 2021 of learned Principal District Judge, Anand, in Regular Civil Appeal No. 19 of 2020 whereby the appeal was dismissed and judgment dated 17.1.2020 passed by the Trial Court in Special Civil Suit No. 41 of 2015 was confirmed. The suit was for the relief of declaration and permanent injunction.

3. From the perusal of the judgment of the court below, it could be noticed that one of the issue No.7 framed by the trial court was whether the defendant could prove that the suit land was in his ownership and possession ?. This issue was answered in negative. In the discussion part of the judgment, it is a specific finding recorded that the plaintiff's - the appellants herein have shown and proved their possession and occupation of the land. It was submitted that despite this aspect, the decree was not passed in favour of the plaintiff and the lower appellate court also perpetuated the error by rejecting the appeal.

C/SA/125/2021 ORDER DATED: 29/07/2021

4. The present Second Appeal deserves to be admitted. The same is admitted by framing the following substantial questions of law.

(i) Whether the court below in absence of challenge to sale deed can declare the title of the plaintiff to be defective ?

(ii) Whether the court below can deny permanent injunction once the possession of the plaintiff is proved on the strength of the registered sale deed ?

(iii) Whether the courts below could have passed the order impugned denying permanent injunction after arriving at the conclusion that the defendants have no right, title or possession over the suit property ?

Order in Civil Application

Heard learned advocate Mr. C. P. Champaneri for the applicant.

Rule, returnable on 14th September, 2021.

By way of ad-interim relief, the parties are directed to maintain status quo with regard to the subject matter land and the land in question shall not be transferred or alienated or encumbered in any manner whatsoever.

(N.V.ANJARIA, J) C.M. JOSHI