Gujarat High Court
Shamji Ratna Arjan Bhudiya vs Ramji Harji Gami on 28 October, 2021
Bench: Vaibhavi D. Nanavati
C/SA/382/2019 ORDER DATED: 28/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 382 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In
R/SECOND APPEAL NO. 382 of 2019
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SHAMJI RATNA ARJAN BHUDIYA
Versus
RAMJI HARJI GAMI
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Appearance:
MR AR THACKER(888) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 28/10/2021
ORAL ORDER
Mr. A.R. Thacker, the learned counsel appearing for the
appellant / applicant has tendered the draft amendment. The same
is allowed. To be carried-out forthwith.
Heard Mr. A.R. Thacker, the learned counsel appearing for
the appellant / applicant.
ORDER IN SECOND APPEAL:
The following substantial questions of law arise in this Appeal
for consideration of this Court:
C/SA/382/2019 ORDER DATED: 28/10/2021
"A. In the facts and circumstances of the case
when father of the respondent no.1/1 had never
challenged the said sale-deed in his life time,
whether it was open for the respondent no.1/1 to
challenge the same?
B. In the facts and circumstances of the case,
whether the suit filed by the respondent no.1/1
through his power of attorney is maintainable
when the said power of attorney is not endorsed
by Collector & District Magistrate as required
under law?
C. In the facts and circumstances of the case,
whether it is open for the respondent no.1/1 to
file suit claiming to be owner of agricultural land
when on the date of so-called gift deed i.e.
5.1.1989 the respondent no.1 was not an
agriculturist and not residing in India and not an
Indian citizen and but British Citizen?
D. In the facts and circumstance of the case
considering the provision Section 89 of Bombay
Tenancy Act, 1958 Gift deed dated 5.1.1989 was
valid?
E. In the facts and circumstance of the case as
per the provision of the Foreign Exchange Act,
1973 which was prevailing at the time of Gift
Deed dated 5.1.1989, foreigner without the
permission of the Reserve Bank of India get the
agricultural land by way Gift Deed?
F. In the facts and circumstance of the case when
person who has filed suit being the so-call power
of attorney without any valid power of attorney
as per the law in such situation suit was
maintainable in law?
G. In the fact and circumstance of the case
whether suit filed by the power of attorney on
the basis of the power attorney of London
without following procedure laid down under
C/SA/382/2019 ORDER DATED: 28/10/2021
Section 18 of the Stamp Act is valid?
4(H):- In the facts and circumstances of the case
it is mandatory for the First Appellant Court to
follow the procedure laid down in judgment
reported in 2021 (11) SCALE page 678 (K.
Karuppuraj Vs. M. Ganesan) Order 41 of 31 r/w
Rule 414 of Civil Manual?
4(I):- In the facts and circumstances of the case it
is duty cast upon the trial court as well as upon
the appellant court to follow the procedure laid
down in Order 14 Rule 1 (5) of the Civil
Procedure Code r/w rule 53 of the Civil
Manual ?
4(J). In the facts and circumstances of the case,
as per the provision of Order 3 Rule 2 of the
Civil Procedure Code, can the power of attorney
holder can give evidence on behalf of the original
plaintiff i.e. Ramji Harji Mulji Gami?"
3. Admit.
4. Issue Notice returnable on 23.12.2021.
ORDER IN CIVIL APPLICATION:
Mr. A.R. Thacker, the learned counsel appearing for the
applicant submits that the respondent no.1 entered into the sale
deed with the appellant - original plaintiff by way of a registered
sale deed dated 16.08.1994 with respect to the suit property. The
respondent no.1 by way of a gift deed, gifted the suit property in
favour of the original plaintiff. The suit came to be filed by Shri
Ramji Harji Shulji Gami through his power of attorney holder - Shri
C/SA/382/2019 ORDER DATED: 28/10/2021
Hirathi Arvind Kalyan seeking permanent injunction on the basis of
the gift deed by the father of the plaintiff in favour of the
respondent no.1 (deceased), who died pending the suit. The legal
heirs are therefore before this Court. Mr. Thacker, the learned
counsel submits that deceased Ramji Harji Gami sold the suit
property to the appellant herein - defendant no.2 by a registered
sale deed dated 16.08.1994. It is submitted by Mr. Thacker that
when the suit was instituted, father i.e. Harji Murji Gami was alive
and it was stated in the written statement that he in his lifetime
had entered into the sale deed with the present appellant - original
respondent no.2. He further submits that pursuant to the sale deed,
he is in possession of the suit property and cultivating the land.
Issue Notice returnable on 23.12.2021.
The parties are directed to maintain status-quo with regard to
the nature, character and possession of the suit property as on
today, till the next returnable date.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
