Budhabhai Nagjibhai vs Mahendrabhai Prabhatbhai
2023 Latest Caselaw 4105 Guj

       C/SCA/2712/2014                                ORDER DATED: 06/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2712 of 2014

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                          BUDHABHAI NAGJIBHAI
                                 Versus
                   MAHENDRABHAI PRABHATBHAI & 5 other(s)
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Appearance:
MR. MR BUKHARI(6919) for the Petitioner(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 1,2,3,4,5,6
MR RAHUL K DAVE(3978) for the Respondent(s) No. 1,2,3,4,5,6
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                               Date : 06/06/2023

                                ORAL ORDER

1. By way of this petition under Article 227 of the Constitution of India, the petitioner - original plaintiff, seeks to challenge the order dated 11.10.2013 passed by the Additional Civil Judge, Court at Jambusar, Dist.: Bharuch, below Exh. 1 in Execution Petition No. 2 of 2004.

2. The petitioner herein was the original plaintiff in Regular Civil Suit No. 18 of 1982. Suit was filed for possession of different agricultural lands being Survey Nos. 905, 921 and 930 situated at the sim of village: Jambusar. The Civil Court, Jambusar, vide its judgment and order dated 26.11.1990, decreed the suit and directed the defendant i.e. respondent herein to handover the peaceful possession of the suit lands. The Appeal challenging the judgment and decree was dismissed by the District Court. In these background facts, the petitioner herein being original plaintiff filed Execution

C/SCA/2712/2014 ORDER DATED: 06/06/2023

Petition. The learned trial Court, partly allowed the Execution Petition, holding that, so far land survey Nos. 905 and 921 are concerned, the petitioner - decree holder is not entitled to get the possession of the entire land, as the decree is passed only for 2 acres and 36 gunthas of land.

3. Being aggrieved and dissatisfied with the order, the present petition is filed under Article 227 of the Constitution of India, invoking supervisory jurisdiction of this Court.

4. Mr. S.K. Bukhari, learned counsel appearing for and on behalf of the petitioner submitted that, the impugned order is contrary to the provisions of law, as the plaintiff is not claiming the entire survey number of 905 and 921 and it cannot be claimed, more particularly when trial Court has decreed the suit only 2 acre and 36 gunthas of land survey no. 905 and 921. In such circumstances, he submitted that if the trial Court would have gone through the facts of decree, then, the impugned order could not have been passed. Thus, he submitted that, the Court has committed patent illegality while refusing to execute the decree so far land survey Nos. 905 and 921 are concerned.

5. Per contra, learned counsel Mr. Kirtidev R. Dave submitted that the learned trial Court has not committed any error much less an error of law warranting any interference by this Court under Article 227 of the Constitution of India. He vehemently submitted that, in the Execution Petition, the petitioner - plaintiff has not clarified about the measurement of the lands and therefore, while rejecting the

C/SCA/2712/2014 ORDER DATED: 06/06/2023

prayer for the remaining survey number, the trial Court has not committed any error of law.

6. Having heard the learned counsel for the parties and on perusal of the impugned order, it appears that, while passing the order, the trial Court failed to consider the contents of the preliminary decree, wherein, the petitioner - original plaintiff was declared the owner of the land survey nos. 905 and 921 paiki, admeasuring 2 acres and 36 gunthas. In such circumstances, the observations of the trial Court, passed in the impugned order that, the entire land of both the survey numbers having been claimed by the plaintiff is not correct. Thus, the error committed by the Court is manifest and apparent on the face of the proceedings, warranting interference by this Court.

7. For the foregoing reasons, the impugned order dated 11.10.2013 passed in Execution Petition No. 2 of 2004 is not sustainable in law and accordingly, it is quashed. The petitioner - plaintiff is at liberty to invoke the necessary provision of C.P.C. for execution of the decree. The trial Court shall ensure that the judgment and decree be executed expeditiously in accordance with law. Direct service permitted.

(ILESH J. VORA,J) P.S. JOSHI