Girdharlal Naradbhai Rakholiya vs Kurjibhai Mepabhai Mavani
2021 Latest Caselaw 4952 Guj

          C/SA/45/2021                                      ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/SECOND APPEAL NO. 45 of 2021
                                With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                   In R/SECOND APPEAL NO. 45 of 2021
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                  GIRDHARLAL NARADBHAI RAKHOLIYA
                                Versus
                     KURJIBHAI MEPABHAI MAVANI
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Appearance:
VMP LEGAL(7210) for the Appellant(s) No. 1,2,2.1,2.2,2.3
for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                            Date : 31/03/2021

                               ORAL ORDER

Order in Second Appeal

1. Heard learned advocate Mr. V. M. Patel on behalf of the appellants.

2. Following substantial question of law are raised;

(A) Whether the courts below erred in law and facts by not granting partition of the suit in view of the appellants having right under Section 44 of the Transfer of Properties Act, 1882?

(B) Whether the judgment and order passed by the courts below are perverse, contrary to material on record and misinterpreting the compromise decree passed by the Honourable Court in First Appeal No.704 of 1997 read with the plaint of Special Civil Suit No.18 of 1969 instituted by the respondent?

           C/SA/45/2021                                     ORDER




      Considering        the   same,    issue   Notice   returnable           on
28.04.2021.


Order in Civil Application

1. Heard learned advocate Mr. V. M. Patel on behalf of the applicant. By way of this application, applicant has prayed to stay the judgment and decree dated 19.12.2020 passed by the Additional District Judge, Dhoraji in Regular Civil Appeal No.5 of 2020 and judgment and decree dated 02.06.2020 passed by the Principal Senior Civil Judge, Dhoraji in Regular Civil Suit No.45 of 2014. Learned advocate Mr. Patel has drawn the attention of this Court to the order passed in First Appeal No.704 of 1970 dated 20.06.1977, more particularly the part where the Court has recorded the terms of settlement which shows that the land is referred as the suit land of survey No.498, situated at Dhoraji.

1.1 Learned advocate Mr. Patel has also taken this Court to the Special Civil Suit No. 18 of 1969 where the suit land is described as land admeasuring 4 vighas out of land bearing survey No.498, which is admeasuring 3 acres and 23 gunthas.

1.2 Learned advocate Mr. Patel has also pointed out that the dispute in the said civil suit was only with regard to the 4 vighas of land and not the entire parcel of land and it is in this context that settlement is arrived at which settlement came to be recorded by the High Court in earlier proceedings.

2. Considering the same, issue Notice returnable on 28.04.2021.

C/SA/45/2021 ORDER

3. Parties shall maintain status quo with regard to the land admeasuring 1 acre 31 gunthas of non - agricultural land bearing survey No.498 paiki situated at Taluka; Dhoraji, District; Rajkot.

(NIKHIL S. KARIEL,J) DRASHTI K. SHUKLA