Gujarat High Court
Amarchand Ramaji Gala Expired vs Heirs Of Late Visabhai Alias ... on 22 October, 2021
Bench: Vaibhavi D. Nanavati
C/SA/185/2021 ORDER DATED: 22/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 185 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/SECOND APPEAL NO. 185 of 2021
=====================================================
AMARCHAND RAMAJI GALA EXPIRED
Versus
HEIRS OF LATE VISABHAI ALIAS BABABHAI BHAGVANBHAI DESAI
=====================================================
Appearance:
MS TRUSHA K PATEL(2434) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,3,4,5,6,7,8,9
for the Respondent(s) No.
1,10,11,1.1,12,1.2,13,1.3,14,1.4,1.5,2,3,3.1,3.2,3.3,3.4,3.5,4,4.1,5,5.
1,5.2,5.3,5.4,5.5,5.6,5.7,6,7,8,9
=====================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/10/2021
ORAL ORDER
Heard Ms. Trusha K. Patel, the learned counsel appearing for
the appellants/ applicants.
ORDER IN SECOND APPEAL:
The following substantial questions of law arise in this Appeal
for consideration of this Court:
"A. Whether the Appellate Judge committed
error in reversing the Judgment and decree
passed by the Trial Court, by entertaining an
Appeal and granting relief sought for in Para:
C/SA/185/2021 ORDER DATED: 22/10/2021
16(a) of the suit, though the plaintiffs no. 1 and
4 to 9 had not challenged the judgment and
decree passed against them by the Trial Court?
B. Whether the Appellate Judge committed
error in reversing the Judgment and decree
passed by the Trial Court without framing issues
as required U/O. XLI of Code of Civil
Procedure?
C. Whether the Appellate Court was right in
granting the relief of injunction without
granting any foundational relief of declaration?
D. Whether the Appellate Court was right in
considering proposed Anusuchit Samudayik
Sahakari Mandali Limited (Nesda Samiti-Samast)
to be the owner when said society itself had not
so claimed and when said society was deleted
by the plaintiffs and was not even a party in
the Appeal before the District Court?
E. Whether the Appellate Court was right in
considering proposed Anusuchit Samudayik
Sahakari Mandali Limited (Nesda Samiti-Samast)
to be the owner when said society had no legal
entity and no account is ever maintained of
such society?
F. Whether the Appellate Court was right in
considering proposed Anusuchit Samudayik
Sahakari Mandali Limited (Nesda Samiti-Samast)
to be the owner when the order of grant of the
disputed land did not remain in force in view
of subsequent orders passed by the competent
authorities under the Gujarat Agricultural Land
Ceiling Act, 1961?
C/SA/185/2021 ORDER DATED: 22/10/2021
G. Whether the Appellate Court was right in
considering proposed Anusuchit Samudayik
Sahakari Mandali Limited (Nesda Samiti-Samast)
to be the owner when the competent final
authority under the Gujarat Agricultural Land
Ceiling Act, 1961 and held that the disputed
land was of private ownership and not of said
Mandali, and when said order attained finality
as the plaintiffs did not challenge the same?
H. Assuming for the sake of submission, the
Mandali was an owner, Whether the Appellate
Court could have granted injunction in favour of
the plaintiffs when the plaintiffs did not
produce a single evidence to show that they
were members of said proposed Mandali?
I. Whether the Appellate Court could have
reversed the judgment and decree passed by the
trial court on the ground that the defendants
had not led the evidence, when the plaintiffs
themselves had not discharged primary burden
to prove their case?
J. Whether the Appellate Court was right in
holding that the proposed Mandali was a
"proposed trust" and the plaintiffs were
"beneficiaries" of the trust as they were
Rabari?
The Appeal is admitted.
C/SA/185/2021 ORDER DATED: 22/10/2021
ORDER IN CIVIL APPLICATION:
Issue Notice and Notice as to interim relief returnable on
26.11.2021.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
