Premji Bhachu Bhuva vs Bhuva Ratnabhai Vishram Dhanji
2022 Latest Caselaw 2804 Guj

     C/SCA/18273/2021                               JUDGMENT DATED: 11/03/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18273 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1     Whether Reporters of Local Papers may be allowed                    No
      to see the judgment ?

2     To be referred to the Reporter or not ?                             No

3     Whether their Lordships wish to see the fair copy                   No
      of the judgment ?

4     Whether this case involves a substantial question                   No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                             PREMJI BHACHU BHUVA
                                     Versus
                        BHUVA RATNABHAI VISHRAM DHANJI
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Appearance:
MR AR THACKER(888) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 3
MR AMAN A SAMA(11691) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                Date : 11/03/2022

                               ORAL JUDGMENT

1. The Petitioner / Original Appellant has filed this Petition under Articles 226 and 227 of the Constitution of India, challenging the order passed by the learned 5th Additional District Judge, Bhuj in Regular Civil Appeal No. 54 of 2016 dated 1.11.2021 confirming the order passed below Exh.5 in Regular Civil Suit No. 32 of 2015 by the learned 5 th Adhoc Additional Senior Civil Judge, Bhuj dated 30.3.2016, whereby the learned Judge has granted injunction to the Respondent No.1 (Original

C/SCA/18273/2021 JUDGMENT DATED: 11/03/2022

Plaintiff) and further directed the Petitioner and Original Defendants not to enter the land bearing Revenue Survey No. 487 of village Kera admeasuring 4 hector 61-34 G Are and not to take possession of the said suit property from the Respondent No.1 (Original Plaintiff).

2. Heard learned Advocate Mr. A.R.Thacker for the Petitioner. Though served, none has remained present on behalf of Respondent Nos. 1 and 2.

3. The facts of the case leading rise to the present Petition are that Respondent No.1 (Original Plaintiff) had filed Civil Suit No. 32 of 2015 in the Court of learned Principal Senior Civil Judge, Bhuj for permanent injunction against the Petitioner and Respondent Nos. 2 and 3 herein (Original Defendants) claiming therein that the land admeasuring 4 Hector 61 Are and 34 Sq. Me = 11 Acres and 16 Gunthas is of the ownership of Respondent No.1 (Original Plaintiff) and sought for permanent injunction against the Petitioner and Respondent Nos. 2 and 3 (Original Defendants). As per the case of the Respondent No.1 (Original Plaintiff), the said suit property bearing Old Survey No. 50 and New survey No. 487 was purchased by the husband of the Original Plaintiff on 25.2.1971 by registered sale-deed No. 210 of 1971. The Plaintiff submits that the suit is based upon sale deed dated 25.2.1971 but said document (sale deed dated 25.2.1971) is not placed on record and suppressed from the Court and not annexed along with plaint. That along with the Plaint, the Respondent No.1 (Original Plaintiff) also filed Application Exh.5 under Order 39 Rule 1 and 2 read with Section 151 of C.P.C. It is contended that the sale deed by which Original Plaintiff's husband purchased the land bearing Survey No.50 by registered sale deed which was registered on 2.3.1971 being Survey No. 210 of 1971 clearly mentions that the land admeasuring 6 acres only is purchased by Respondent No.1 husband and therefore the Respondent No.1 has a

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right upon 6 acres of land which her husband purchased by registered document dated 2.3.1971. It is also contended that the Petitioner has also produced registered sale deed of the land which was purchased by the Petitioner of Survey No.52 which was registered on 26.7.1974 vide Registration No. 1072. The Petitioner has purchased the said land from Kanbi Bachu Mavji Bhuva of Kera. The Petitioner does not claim any right over the land purchased by the Respondent No.1 (Plaintiff) by registered document dated 2.3.1971. The Respondent No.3 purchased the Survey No. 491 vide registered sale deed dated 20.1.1987 from Muli Karsan Rabadiya.

4. Learned Advocate for the Petitioner has submitted that the learned 5th Ad hoc Additional Senior Civil Judge, Bhuj decided the matter only relying upon revenue records and not considered the documents of title and thereby directed the parties to maintain status quo and further directed the Appellants (Original Defendants) not to enter the land bearing Revenue Survey No. 487 of villate Kera and also directed not to take possession of the said suit property from the Respondent No.1 (Original Plaintiff) thereby preventing the Petitioner from entering his own land which he has purchased by registered document dated 26.7.1974 having ownership by virtue of registered sale deed. That the learned 5th Adhoc Additional Senior Civil Judge, Bhuj has passed such mandatory injunction against the Petitioner and Original Defendant No.1 at interim stage only on the basis of revenue record submitted by the Respondent No.1 and ignored the registered documents.

5. Being aggrieved with the said order, the Petitioner and Respondent No.3 preferred Regular Civil Appeal before the District Court, Kutch at Bhuj which was registered as Regular Civil Appeal No.54 of 2016 and the learned 5th Additional District Judge, Kutch at

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Bhuj vide his judgment and order dated 1.11.2021 dismissed the said Appeal and confirmed the order passed by the learned Trial Judge without considering the submissions made by the Petitioner and Respondent No.3 and has also not considered the factual aspects of the matter and thereby the Petitioner and the Original Defendants are restrained from entering into their own land which is purchased by the Petitioner by registered sale deeds and having possession of the land since the year 1974.

6. Learned Advocate for the Petitioner has submitted that the orders passed by both the Courts below are bad and required to be quashed and set aside. It is submitted that the Courts below have failed to appreciate that the provisions of Order 39 Rule 1 and 2 of C.P.C. are to prevent multiplicity of proceedings and the rights of the parties are to be maintained as it is. It is submitted that the Courts below have not taken into account the provisions of Bombay Land Revenue Code and passed the order which is totally contrary to the provisions of Bombay Land Revenue Code. It is submitted that the mandatory injunction granted by the learned Judge amounts to allowing the Suit at the stage of interim injunction only and that the Suit is for the injunction only and by virtue of the order below Exh.5 the Suit filed by the Plaintiff is allowed without leading any evidence. Learned Advocate for the Petitioner has further submitted that the provisions of Order 39 Rule 1 and 2 of C.P.C. is for the prevention of the property but not to grant the mandatory injunction of allowing the Suit at such stage without evidence and not allow the Petitioner to enter his own property. Learned Advocate for the Petitioner has further submitted that the learned Judge has only relied upon the revenue records and not the registered sale deed at Exh.13/1 which specifically mention regarding purchase of land by the Original Plaintiff. It is further submitted that it is settled position of law that the revenue records are not document of title. In support of his submission,

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learned Advocate for the Petitioner has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Jitendra Singh v. State of Madhya Pradesh in Special Leave Petition No. 13146 of 2021. It is therefore submitted that the Courts below have granted mandatory injunction and has allowed the Suit at interim stage and therefore the order is required to be quashed and set aside. It is further submitted that both the Courts below have failed to consider that after filing of the reply to Ex.5 along with registered documents, Respondent No.1 has not filed any counter to that, meaning thereby, Respondent No.1 having knowledge that he has only right on 6A of land which her husband has purchased by registered document dated 2.3.1971, but the Courts below have not taken into account this particular fact and have passed the order which is contrary to law and required to be quashed and set aside. It is therefore submitted that the Petitioner has got strong prima facie case and the balance of convenience is also in favour of the Petitioner and if the interim relief as prayed for is not granted, the Petitioner will suffer great hardship and inconvenience which cannot be compensated in terms of money when on the other hand the Respondents are not likely to suffer any loss or hardship by grant of interim relief as prayed for.

7. Having heard the arguments advanced by the learned Advocate for the Petitioner and also pursuant to the stand taken by the Original Defendant, who is the present Petitioner before this Court so far as land bearing Revenue Survey No. 487 is not properly dealt with by both the learned 5th Additional District Judge, Bhuj in the order passed in Regular Civil Appeal No. 54 of 2016 dated 1.11.2021 confirming the order passed below Exh.5 in Regular Civil Suit No. 32 of 2015 by the learned 5th Adhoc Additional Senior Civil Judge, Bhuj dated 30.3.2016. Therefore, pursuant to the order passed by the learned 5 th Adhoc Additional Senior Civil Judge, Bhuj dated 30.3.2016, ex facie, it appears

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that the learned Judge has directed to maintain the status quo of the suit premises in the first paragraph but in the second paragraph of the operative order, it is directed that the Defendants are restrained to enter into the Revenue Survey No. 487 admeasuring 4.61.34 and therefore it appears that ex facie the Court below has committed error since the Revenue Survey No. 487 belongs to Defendants as per the pleadings, and therefore, the learned Civil Judge is required to examine the facts on the basis of the arguments advanced by both the sides. Further, the observation made by the learned Civil Judge is endorsed and upheld by the learned 5th Additional District Judge, Bhuj, and hence, without going into the merits of the matter, it would be appropriate to remand the matter for arriving at the proper conclusion of temporary injunction Exh.5 by the learned Court below i.e. 5th Adhoc Additional Senior Civil Judge, Bhuj. Therefore, it appears that modification is required and therefore, if this Court appreciate the evidence, it may prejudice either of the parties. Therefore, in the interest of justice, the matter is remitted back to the learned Trial Court to decide Exh.5 Application afresh without being influenced by the order passed by this Court in the present Petition, which would meet the ends of justice. The present Petition stands allowed. The order passed by the by the learned 5 th Additional District Judge, Bhuj in Regular Civil Appeal No. 54 of 2016 dated 1.11.2021 confirming the order passed below Exh.5 in Regular Civil Suit No. 32 of 2015 by the learned 5 th Adhoc Additional Senior Civil Judge, Bhuj dated 30.3.2016 is quashed and aside. The learned 5 th Additional District Judge, Bhuj shall decide the Exh.5 Application in accordance with law after affording opportunities to both the sides, within six weeks from the date of receiving the writ of this order.

No order as to costs.

(A. C. JOSHI,J) J.N.W