Vajiben Khimabhai vs Jyotsanaben Nareshbhai Karodiya
2022 Latest Caselaw 10184 Guj

       C/SCA/10576/2018                                 ORDER DATED: 15/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10576 of 2018

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                     VAJIBEN KHIMABHAI & 1 other(s)
                                Versus
              JYOTSANABEN NARESHBHAI KARODIYA & 1 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2
RUSHABH H MUNSHAW(8958) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2
MR SANDEEP R LIMBANI(5977) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 15/12/2022
                                 ORAL ORDER

1. Heard learned Advocate Mr. Rushabh H. Munshaw on behalf of the

petitioners and learned Advocate Mr. Sandeep R. Limbani for the

respondent No.1.

2. At the outset, it is required to be noted that what is challenged by way

of this writ petition is judgment and order passed by the District Court,

Rajkot, dated 30.04.2018, whereby an order of the learned Civil Court dated

15.09.2017, whereby an application under Exh.5 for grant of interim

injunction had been rejected, has been set aside by the learned Lower

Appellate Court, and whereas interim injunction as prayed for by the

original plaintiff in application below Exh.5 had been granted. As noted

hereinabove, the judgment and order being of 30.04.2018 and whereas the

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present petition being filed immediately thereafter in the month of June,

2018, thereafter, it appears that though the matter had been listed on various

dates, the matter had not been heard. Thus, only on the ground of the order

having remained unchallenged for more than four and half years, in the

considered opinion of this Court, no interference is warranted.

3. Inspite of the above observations, this Court has heard the learned

Advocates for the respective parties and whereas learned Advocate Mr.

Munshaw on behalf of the petitioners would assail the impugned judgment

and order passed by the learned District Judge inter alia on the ground that

the learned District Judge, had proceeded on the basis of the assumptions

and presumption and whereas the learned District Judge had misapplied the

law and whereas according to learned Advocate Mr. Munshaw, the learned

District Judge had also without any leading of evidence, come to certain

conclusions, which would be of the nature of finally deciding the suit in

favour of the plaintiff. According to the learned Advocate for the

petitioners, the civil suit had been preferred by one Jyotsanaben, who is

daughter of one Ratanben Khimabhai and whereas the suit in question had

been filed two years after the demise of Ratanben. Learned Advocate would

submit that Ratanben being one of the three daughters of one Khimabhai,

upon the demise of Khimabhai, certain partitions had been entered into

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between the family members, more particularly such partitions having taken

place in the year 1977, and whereas such partitions had also been mutated in

the revenue record. Learned Advocate would submit that even later on, the

family property had been further divided, as per the agreement of the family

members and whereas even such intent of the family members has been

mutated in the revenue record, more particularly vide an Entry No. 1194,

whereby the family arrangement dated 10.08.2002 has been incorporated in

the revenue record. Learned Advocate would submit that the mother of the

original plaintiff having never questioned the family arrangement or the

revenue entries, at the relevant point of time or during her lifetime, the suit

itself filed after the demise of the mother of the plaintiff was grossly delayed

and whereas all these aspects had not been considered by the learned Lower

Appellate Court. Learned Advocate would submit that the mother of the

original plaintiff having given up her share in the property in question, after

her demise it would not have been open for her daughter to question the

family arrangement in which her mother was a party and whereas the

learned the District Court, without considering all these aspects, had granted

interim injunction. Learned Advocate would further submit that the order

passed by the learned Trial Court being a well reasoned order, the learned

Lower Appellate Court ought not to have set aside the same and ought not

to have granted interim injunction in favour of the original plaintiff. Having

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regard to such submissions, learned Advocate Mr. Munshaw would request

this Court set aside the judgment and order passed by the learned Lower

Appellate Court.

4. This petition is vehemently objected to by learned Advocate Mr.

Sandeep Limbani on behalf of the respondent- original plaintiff. Learned

Advocate Mr. Limbani would submit that as far as the aspect of delay is

concerned, the suit in question had been brought two years after the mother

of the original plaintiff had expired. Learned Advocate would submit that

the original plaintiff, during the lifetime of her mother, was not aware about

the details of the family property and upon demise of her mother, upon

inquiry, it was learnt that there were certain so-called family arrangements,

which were to the detriment of the plaintiff, and hence the civil suit was

required to be filed. Learned Advocate Mr. Limbani would further submit

that insofar as the revenue entries are concerned, it is by now a well settled

position of law that revenue entries, are fiscal in nature and whereas the

right or title of a person are not determined by the revenue entries with

regard to the properties in question. Learned Advocate Mr. Limbani would

further submit that the original plaintiff, being daughter of Ratanben, who

was a direct heir of Khimabhai who was the owner of the property, there

exists a prima facie case in favour of the original plaintiff, more particularly

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since the mother of the plaintiff would have been entitled to 1/3rd share in

the entire family property as one of the legal heirs of the original owner and

since the original plaintiff was the only daughter of Ratanben, all such rights

would automatically devolve upon her. Learned Advocate would further

submit that the mother of the plaintiff as mentioned in the suit, after

separating from her father, had been living in her matrimonial house as per

the averments made in the plaint and whereas it appears that without there

being any arrangement, to the benefit of the mother of the plaintiff, the

mother of the plaintiff had been ousted from the family properties. Learned

Advocate would further submit that having established a prima facie case

and since the entire issue is with regard to the landed properties, if the

interim injunction as requested for were not granted, then at the end of the

suit even if a decree were to be passed in favour of the present original

plaintiff and in the meanwhile if the properties were transected by the

defendants, then the original plaintiff will suffer irreparable loss which

would not be compensated in terms of money. Thus, learned Advocate Mr.

Limbani would submit that aspects of balance of convenience and

irreparable loss are also in favour of the plaintiff. Under such circumstances,

learned Advocate Mr. Limbani would submit that no error whatsoever has

been committed by the learned Lower Appellate Court and whereas no

interference to the said judgment and order may be done by this Court.

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5. Heard learned Advocates for the parties, who have not submitted

anything further.

6. It appears that the Regular Civil Suit No. 236 of 2015 had been

preferred by the respondent herein inter alia praying for a declaration that

she was entitled to 1/3rd in the family properties and whereas it was further

prayed that the properties in question may be partitioned and the original

plaintiff may be put in possession of 1/3rd share of the property; in

alternative the original plaintiff had prayed that she may be declared to be

entitled to 2/3rd share in the family property bearing revenue survey No. 70

(Paiki) which was admeasuring 4 Acres as against the other family property

bearing revenue survey No. 70 admeasuring 12 Acres and revenue survey

No. 38 admeasuring 10 Acres. It appears that the original plaintiff had also

sought for interim injunction and vide the order dated 15.09.2017, the

learned 5th Additional Senior Civil Judge, Rajkot had rejected the said

application, more particularly coming to a conclusion that the suit was

delayed, more particularly the present plaintiff not having taken any

reasonable steps from the year 1988 i.e. with regard to entry No. 701 which

was mutated in the revenue records on 30.9.1988 and till 2014 i.e. prior to

the demise of the mother of the original plaintiff. The learned Trial Court

was of the opinion that all the three factors which have to be considered for

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grant of interim injunction were not in favour of the original plaintiff, and

hence the application had been rejected. The original plaintiff had

challenged the said order by preferring Misc. Civil Appeal No. 77 of 2017

before the learned District Court, Rajkot and whereas by the impugned

judgment and order dated 30.04.2018, the learned 7th Additional District

Judge, Rajkot, had been pleased to set aside the order refusing to grant

interim injunction and whereas the interim injunction as prayed for was

granted in favour of the plaintiff inasmuch as, the defendants were

restrained from alienating or transferring the suit property i.e. revenue

survey No. 70 and revenue survey No. 38 of village Bedi, Taluka and

District, Rajkot, till final decision of the suit.

7. Now, considering the arguments made by the learned Advocate for

the present petitioners, this Court is in broad agreement with the reasoning

arrived at by the learned Lower Appellate Court. It appears that as far as the

aspect of delay is concerned, the learned Lower Appellate Court had come

to a conclusion that mother of the original plaintiff had expired in the year

2013 and whereas the suit had been brought within two years of such

demise. Learned Lower Appellate Court had come to a conclusion that the

period of limitation for a suit by a person excluded from joint property to

enforce a right to share therein is 12 years and whereas the period of

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limitation would start only from the date of the knowledge and whereas as it

is averred in the suit that upon the mother of the original plaintiff expiring

on 10.03.2013, the plaintiff came to know about such facts and whereas the

suit was brought in the year 2015, to be precise on 13.09.2015. Thus,

according to the learned Lower Appellate Court, the suit was within the

period of limitation and whereas in the considered opinion of this Court, the

learned Lower Appellate Court has not committed any error on this count.

8. As far as the merits of the issue is concerned, a prima facie perusal of

the so-called family arrangements, would show that the mother of the

original plaintiff had been short charged in all the family arrangements, more

particularly it appears that all the family arrangements were designed to the

detriment of the mother of the original plaintiff. Prima faice, in the

considered opinion of this Court, when a daughter who has separated from

her husband, is living in her maternal house with a minor daughter, at the

stage of family partition, under normal circumstances, the family would

attempt to ensure that such a daughter is taken care of, more particularly

appropriate arrangement would be made for such a separated daughter in

such arrangements. In the instant case, a prima facie perusal of the family

arrangements of the year 1977 and later would clearly show that neither a

reasonable part of the property was earmarked for the separated daughter

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nor any special provision had been made for the separated daughter, it

rather appears that the separated daughter, was not even considered for

equal share in the family property in the arrangements mentioned

hereinabove.

9. Furthermore, insofar as the revenue records are concerned, in the

considered opinion of this Court, it is by now a well settled principle of law

that revenue entires are merely for fiscal purposes and whereas entries in

revenue records, would not have the effect of deciding the substantive right

or title of a person to a property. Merely on account of family partition or

relinquishment deed, being mutated in revenue record, would not give such

documents the validity or legality which it otherwise did not possess. Thus,

in the considered opinion of this Court, merely on account of there being an

existence certain unregistered family agreements which were to the

detriment of the plaintiff and merely on account of the fact that such family

arrangements including relinquishment deed were mentioned in the revenue

records, the original plaintiff may not have a prima facie case, would be a

contention which would not be countenanced by this Court. This Court is

also in broad agreement with the submissions of learned Advocate Mr.

Limbani that the original plaintiff having made out a prima facie case,

considering the nature of dispute between the parties and considering the

nature of the fact that the suit properties are parcels of land, in the

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considered opinion of this Court, if interim injunction as granted by the

First Appellate Court were not granted in favour of the original plaintiff,

then the plaintiff would suffer irreparable injury in case such suit properties

were transected by the respondents. Thus on the whole, in the considered

opinion of this Court, all the three factors which are required to be

considered by any court for grant of interim injunction i.e. prima facie case,

balance of convenience and irreparable injury, are all in favour of the

original plaintiff and whereas under such circumstances, in the considered

opinion of this Court, this Court does not find any error in the judgment

and order passed by the learned Lower Appellate Court while granting

interim injunction in favour of the original plaintiff.

10. At this stage, this Court deems it appropriate to refer to and rely

upon the observations of the Hon'ble Apex Court in case of Garment Craft

Vs. Prakash Chand Goel, reported in (2022) 4 SCC 181. The observations

of the Hon'ble Apex Court at paragraph 15 being relevant for the present

purpose is reproduced hereinbelow for benefit.

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon

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which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice."

11. The Hon'ble Apex Court in the above quoted paragraph has inter

alia explained the limited jurisdiction to be exercised by a High Court under

Article 227 of the Constitution of India. As can be clearly discerned from

the law laid down by the Hon'ble Apex Court, this Court is not required to

act as a court of first appeal to re-appreciate or reweigh the evidence or facts

upon which the determination under challenge is based. This Court is also

not required to exercise supervisory jurisdiction to correct every error of law

and whereas the jurisdiction is to be exercised if there is either a grave

dereliction of duty or there is a flagrant abuse or violation of the

fundamental principles of law or justice. Most importantly, the Hon'ble

Apex Court has inter alia observed that if the decision/final finding is

justified or supported, then even an error of fact or a legal flaw as appearing

in the order, would not vitiate the entire order and even under such

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circumstances, this Court may not interfere with such order. The extent of

jurisdiction, as per the Hon'ble Apex Court is to be exercised where the

order suffers from some fundamental flaw like there being no evidence or

the findings being perverse and whereas the most important consideration

would be as to whether the impugned order, would cause a miscarriage of

justice.

12. In the instant case, none of the considerations as set out by the

Hon'ble Apex Court would weigh in favour of the defendants i.e. the

present petitioners. In the considered opinion of this Court, the final finding

of the First Appellate Court is justified, and whereas under such

circumstance even if one were to accept the submissions of learned

Advocate for the petitioners that there might be some assumptions in the

reasoning part of the learned Court, then also no interference would be

called for. Furthermore, this Court is of the considered opinion that the

impugned judgment and order neither suffers from the vice of no evidence

nor is the order so perverse that no reasonable person could ever come to

such a conclusion. This Court is also of the opinion that the impugned

judgment and order does not suffer from any fundamental flaw as regards

violation of any principle of law or on facts. This Court is also of the

opinion that the judgment and order in question, does not cause any

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miscarriage of justice. Under such circumstances, in the considered opinion

of this Court, no interference in the impugned judgment and order passed

by the learned Lower Appellate Court is called for.

13. Furthermore, as noted by this Court at the very outset of this

decision, almost four and half years have passed after the judgment and

order impugned had been passed and whereas even notice has not been

issued in the present petition. Under such circumstances also this Court

deems it appropriate not to interfere and whereas in the considered opinion

of this Court, equities could be balanced if the learned Trial Court is

directed to hear and decide the civil suit as expeditiously as possible, more

particularly considering that the suit is of the year 2015.

14. In view of the above observations, discussion and findings, the

following order is passed.

(1) Challenge to judgment and order dated 30.04.2018, passed by

the learned 7th Additional District Judge, Rajkot, in Misc. Civil Appeal

No. 77 of 2017 being unsustainable, the present petition is rejected.

(2) The learned Civil Court where the Regular Civil Suit No. 236

of 2015 is pending, is directed to hear and decide the said Civil Suit as

expeditiously as possible, more particularly having regard to the fact

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that the suit is of the year 2015 and whereas such order of expeditious

hearing shall be subject to other pendencies with the learned Civil

Court.

(3) The learned Civil Court is also directed to decide the suit

without being influenced either by the observations of the learned

Lower Appellate Court or by the observations of this Court.

15. With the above observations and directions, the present petition is

disposed of as rejected.

(NIKHIL S. KARIEL,J) BDSONGARA