Mrudulaben Kantilal Shah vs Ramtuji Becharji Deceased ...
2021 Latest Caselaw 7175 Guj

     C/SCA/1162/2010                              ORDER DATED: 29/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1162 of 2010

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                  MRUDULABEN KANTILAL SHAH
                            Versus
     RAMTUJI BECHARJI DECEASED THROUGH HIS HEIR & 5 other(s)
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Appearance:
MR. AUM M KOTWAL(7320) for the Petitioner(s) No. 1
(MR SR DIVETIA)(307) for the Respondent(s) No. 1
ADVOCATE NOTICE SERVED(81) for the Respondent(s) No. 1
MR JV VAGHELA(5809) for the Respondent(s) No. 2.1,2.2,2.3,3.1,3.2,3.3,3.4
MR PARESH M DARJI(3700) for the Respondent(s) No. 6
MR RJ GOSWAMI(1102) for the Respondent(s) No.
2.1,2.2,2.3,3.1,3.2,3.3,3.4
RULE SERVED(64) for the Respondent(s) No. 4,5
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 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI

                              Date : 29/06/2021

                               ORAL ORDER

1. This is a petition preferred under Articles 14 and 227

of the Constitution of India with the following reliefs:

"20..

(A) This Honourable Court may kindly be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned judgment at Annexure 'H' hereto as also the order dated 11.05.2007 passed by the learned Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur below application Exh.5 at Annexure 'E' hereto; and consequently granting relief prayed for in application Exh.5;

C/SCA/1162/2010 ORDER DATED: 29/06/2021

(B) Pending admission, hearing and final disposal of this petition, the Honourable Court may kindly be pleased to issue an injunction restraining the respondents herein from creating any obstruction in possession, occupation and enjoyment of the suit land by the petitioner and also restraining the respondents herein from in any manner transferring the suit land in favour of a third party either by sale, mortgage, gift, lease or otherwise or from in any manner dealing with the suit land;

(C) Such other and further relief or relief's as may be deemed just and expedient in view of the facts and circumstances of the case may kindly be granted;

(D) Costs of this petition may kindly be awarded to the petitioner."

2. For the consideration of the Court, the questions

raised by the petitioner are as follow:

"(1) Whether the Courts below committed an error in not appreciating the law laid down by the Honourable Supreme Court and this Honourable Court in series of decisions to the effect that the mutation entries are effected in the revenue record only for fiscal purpose and such mutation entries do not confer title to the land on the person whose in named in the revenue record ?

C/SCA/1162/2010 ORDER DATED: 29/06/2021

(2) Whether the Courts below committed an error in not appreciating the law laid down by the Honourable Supreme Court and this Honourable Court in series of decisions to the effect that the Civil Court has no jurisdiction to decide whether a particular piece of land is a fragment within the meaning of the said term occurring in the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as "the Fragmentation Act") ?

(3) Whether the Courts below committed an error in not appreciating that unless a sale deed which is registered under the Regirstion Act is set aside or cancelled by a competent Civil Court, the purchaser of the property continues to be the lawful owner of the said property ?

(4) Whether the Courts below committed an error in not appreciating the law laid down by the Honourable Supreme Court and this Honourable Court in series of decisions to the effect that the question as to the title to the property can be decided only by a competent Civil Court and that the Revenue authorities have no jurisdiction to decide such question ?

(5) Whether the Courts below committed an error in replying upon the revenue record while deciding the

C/SCA/1162/2010 ORDER DATED: 29/06/2021

question as to ownership of the suit land ?

(6) Whether the Courts below committed an error in holding that the petitioner herein is not in actual physical possession of the suit land and that she is not a bonafide purchaser of the suit land ?

(7) Whether the Court below committed an error in holding that the sale deed executed in favour of the petitioner is null and void as it is got executed by perpetrating fraud, without there being any documentary or oral evidence on the record of the case to arrive at the said conclusion ?

(8) Whether the Courts below committed an error in not appreciating that four civil suits filed by different parties claiming ownership right over the suit land are pending before the Civil Courts for final disposal; and that unless those suits are decided, the petitioner could not have been deprived of her possession of the suit land at an interim stage ?

(9) Whether the Courts below committed an error in not appreciating that unless the sale deed executed in favour of the petitioner is cancelled by the competent Civil Court, she continues to be the owner of the suit land and, therefore, till the suit was decided, her possession was required to be protected by granting

C/SCA/1162/2010 ORDER DATED: 29/06/2021

appropriate interim relief during the pendency of the suit ?

(10) Whether the Courts below committed an error in not properly appreciating the relevant provisions of the Transfer of Property Act, Specific Relief Act, Fragmentation Act and the Code of Civil Procedure, in the context of the facts of the present case ?

(11) Whether the orders of the Courts below contain errors apparent on the fact of the record ?

(12) Whether the learned Judge of the appellate Court has committed an error in not appreciating the law laid down in the decisions cited at the bar on behalf of the petitioner and in not dealing with any of the said decisions in his judgment ?"

3. This concerns the land admeasuring Hectare 2-34-72

sq.mts. of old Survey Nos.193 and 195 allotted Block

No.209 at village Bhadaj, Taluka Dascroi, District

Ahmedabad which was owned possessed by the deceased

respondent Nos.1 and 2 and the same had been inherited

by the respondent No.2(1) to 2 (3) and 3(1) to 3(4) and

one Jadiben Ramtuji.

C/SCA/1162/2010 ORDER DATED: 29/06/2021

3.1 Ramtuji Becharji and Ramaji Becharji both died and

at oral partition came to the share of daughter of Ramtuji

Becharji - Jadiben. Jadiben sold the suit land to

Ranchhodbhai Lakhubhai Dabhi - respondent No.4 by

registered sale deed dated 04.10.2004.

4. Regular Civil Suit came to be filed being 746 of 2004

in the Court of learned Civil Judge (Senior Division),

Ahmedabad (Rural) for declaration and permanent

injunction against Jadiben - daughter of Ramtuji.

According to the petitioner, respondent Nos.3(1) to 3(4)

filed Injunction Application for interim relief and the same

is pending before the Court of learned Senior Civil Judge.

5. It also further reveals that ex-parte interim relief had

been granted directing the parties to maintain status quo

with reference to the suit land and the same had been

directed to be operated till final disposal of the application

below Exhibit-5.

6. Respondent No.1 Jadiben has filed Special Civil Suit

C/SCA/1162/2010 ORDER DATED: 29/06/2021

No.185 of 2006 for cancellation of the sale deed in

respect of the suit including the sale deed executed by her

in favour of respondent No.4 on 04.10.2004. she has also

preferred an application for interim relief in the said suit.

7. Respondent No.2(1) to 2(3) sold the suit land to one

Hiralal Bhikharamdas Patel who preferred Regular Civil

Suit No.176 of 2007 in the Court of learned Additional

Senior Civil Judge, Ahmedabad (Rural) for appropriate

relief.

8. In Regular Civil Suit No.875 of 2005 the interim relief

had been granted by the trial Court and the Misc. Civil

Appeal No.76 of 2007 preferred before the Presiding

Officer, Fast Track Court No.4, Ahmedabad, which

dismissed the said appeal on 30.09.2008 and confirmed

the order passed by the trial Court below application

Exhibit-5. The learned Presiding Officer directed the trial

court judge to dispose of the suit earliest as possible.

However, the appeal came to be dismissed on 30.09.2008

and that has aggrieved the present petitioner.

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9. This Court issued notice on 08.02.2010 and later, on

27.01.2011 issued the Rule and expedited the matter. It

also permitted the petitioner register lis-pendense before

the revenue authorities.

10. Today, when the matter came up for final hearing,

the Court has heard the learned advocate, Mr.Om Kotwal

appearing for the petitioner and learned advocate

Mr.R.J.Goswami with learned advocate, Mr.J.V.Vaghela for

respondent Nos.2 to 2.3 to 3.4, learned advocate,

Mr.Gandhi with learned advocate, Mr.Paresh Darji for

respondent No.6. Respondent No.1 is not represented by

anyone after the learned advocate, Mr.S.R.Divetia during

the pendency of this matter has unfortunately passed

away.

11. On hearing the learned advocates on both the sides,

it is noticed that in both the suits being Regular Civil Suit

No.875 of 2005 and Regular Civil Suit No.176 of 2007 are

pending before the Court of learned Senior Civil Judge,

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Ahmedabad (Rural).

11.1 Let proceedings of Regular Civil Suit No.875 of

2005 and Regular Civil Suit No.176 of 2007 be expedited.

The substantive civil rights of the parties will be governed

by the final outcome of these Civil Suits, which are

pending.

11.2 Needless to say that the interim protection

granted in favour of the parties is to continue, but the

same shall not govern the decision of the Court. The basis

for adjudication shall need to be the oral as well as

documentary evidence as may be adduced by the parties

on the strength of the averments set out. None of the

findings and observations at the preliminary stage in the

interim relief shall govern the rights of the parties.

12. Learned advocate, Mr.Om Kotwal has requested to

withdraw this petition.

13. Request is acceded to. Other side has no objection to

the same. This withdrawal shall not come in the way of

the parties. Both the suits being of the year 2005 and

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2007 shall be expeditiously decided and as far as possible

shall be concluded with the cooperation of both the sides.

The parties shall also attempt to proceed with the

recording of evidence through the video conference, if

physically is not possible.

14. With the above directions, present petition is

disposed of as withdrawn. Interim relief granted earlier

stands vacated.

15. Rule is discharged.

(SONIA GOKANI, J) M.M.MIRZA