Baria Fatehsinh Lallubhai vs Machhi Rameshbhai Dahyabhai
2023 Latest Caselaw 2626 Guj

      C/SCA/4177/2023                              ORDER DATED: 29/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4177 of 2023

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                         BARIA FATEHSINH LALLUBHAI
                                   Versus
                        MACHHI RAMESHBHAI DAHYABHAI
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Appearance:
MR HARSH M SURTI(3907) for the Petitioner(s) No. 1
MR. KALRAV R PATEL(7041) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 29/03/2023

                                ORAL ORDER

1. The present petition is filed challenging the

judgment and order dated 18.7.2022 passed in Regular

Civil Suit No.22 of 2021 by the Additional Civil Judge,

Rajpipla and the order passed by the Principal District

Judge, Narmada dated 26.12.2022 in Miscellaneous Civil

Appeal No.14 of 2022.

2. The brief facts leading to filing of this petition

are as under:

2.1 That the petitioner filed Regular Civil Suit

No.22 of 2021 in the Court of Principal Civil Judge

(Senior Division), Rajpipla praying that the petitioner be

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declared the owner of the land bearing Block/Survey

No.174 (old survey no.15 paikee) bearing Khata no.160

admeasuring 0-83-01 (hereinafter referred to as `the suit

land') along with the injunction application Exh.5. The

said application Exh.5 was rejected against which the

petitioner filed Miscellaneous Civil Appeal No.14 of 2022

before the learned Principal District Judge, Rajpipla,

Narmada which also came to be dismissed vide order

dated 26.12.2022.

2.2 The suit was filed on the grounds that the

land bearing old survey no.15 paikee was sold by its

original owner Machhi Maganbhai Cheetabhai to

Govindbhai Dhanabhai on 4.4.1955 for sale declaration of

Rs.125/-. That the adjoining land bearing survey no.14 paikee was a small piece of land and Govindbhai

Dhanabhai gave it to the father of the petitioner

Lallubhai Devabhai for cultivation with an

understanding that it will be sold to the father of the

petitioner; that since the year 1955 the father of the

petitioner was cultivating the land with the knowledge of

the father of the defendant and later on when the father

died, the petitioner was cultivating the land with the

C/SCA/4177/2023 ORDER DATED: 29/03/2023

knowledge of the defendant; that there was no objection

or obstacles from the defendant; that as the names of

the present respondents were reflecting in the revenue

records, the respondent no.4 threatened the petitioner on

1.2.2021 and though the respondent nos.1,2 and 3 have

nothing to do with the suit land, they accompanies the

respondent no.4 and threatened the petitioner and

therefore, the petitioner filed the suit before the learned

trial Court along with the Exh.5 application for interim

injunction, which was rejected as stated in the paragraph

no.2.1 hereinabove and hence this petition.

3. Heard learned advocate Mr.Kalrav Patel for the

petitioner. He submitted that both the lower Courts have

erred in finding that the present petition has no case on merits. On the contrary, the petitioner has produced the

receipt as well as affidavits in support of his say that

he is in continuous possession since last 30 years. He

has further submitted that the respondent no.4 is son of

the owner of the suit land i.e. Govindbhai Dhanabhai

and he never objected the peaceful possession and

cultivation of the suit land by the plaintiff for years

together. He has further submitted that on 1.2.2021 all

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the respondents unitedly rushed upon the suit land to

threaten the petitioner. That the suit land is running in

the name of the respondent no.4 in the revenue record

and therefore the petitioner has to file suit but the

petitioner is cultivating it since last 30 years and that

aspect is not properly considered by the learned trial

Court. He has further submitted that the factor of

balance of convenience and hardship is required to be

considered in the facts and circumstances of the case in

favour of the present petitioner as the petitioner is

having continuous possession for more than 30 years.

Learned advocate has therefore prayed that as both the

Courts below have not properly considered the aspects of

prima facie balance of convenience and irreparable loss by not properly discussing the evidence available on the

record, this Court should exercise the supervisory power

under Article 227 of the Constitution of India and allow

this petition.

4. I have heard learned advocate for the

petitioner and perused the material available on the

record i.e. the suit filed by the present plaintiff as well

as the order passed by the learned trial Court below

C/SCA/4177/2023 ORDER DATED: 29/03/2023

Exh.5 and the order passed by the learned lower

appellate Court in Civil Miscellaneous Appeal. It

transpires from the order passed by both the Courts

below that they have discussed the evidence available in

detail by giving cogent and convincing findings. The

learned trial Court has framed the issues regarding the

prima facie case, balance of convenience and irreparable

loss which may cause to the parties and after

considering the same and by considering the material

available on the record, the trial Court has prima facie

found that the plaintiff has failed to produce any

documentary evidence by which he can establish his

possession. Of course, the Court has found that the

affidavits which are filed by two witnesses are not required to be believed at this stage of considering the

application for injunction as the said witnesses are from

the same village and are required to be tested at the

time of trial and their evidence is required to be

evaluated. The trial Court has also rightly found that

the revenue entry is also effected in the revenue record

and as back as in the year 2014 and there is no

objection raised by any of the parties. It transpires that

the learned trial Court has considered the judgment of

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the Apex Court in the case of Karnataka Wakf Board V/

s State reported in (2004)10 SCC 779 and has rightly come to the conclusion that the petitioner has failed to

prove his prima facie and other factors of balance of

convenience though the petitioner-plaintiff has proved his

case about the possession of suit land. The lower

appellate Court has also found that the impugned

judgment passed by the learned trial Court is in

accordance with law and the learned appellate Court has

briefly discussed the same in its judgment about the

case of the parties and finding given by the trial court

and thereafter considering the limited jurisdiction under

Article 43 Rule 1(r), the Court has found no reason to

interfere with the findings. Both the courts have found concurrently in favour of the respondents and against the

petitioner.

5. At this stage, it is required to refer to the

judgment of the Apex Court in the case of Garment

Craft V/s Prakash Chand Goel reported in (2022) 4 SCC 181, whereby the Apex Court has said that supervisory

jurisdiction of High Court when to be exercised, more

particularly, paragraph 15 to 17 which read as under:

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"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 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. 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.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has

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observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if 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, which the court or tribunal has come to."

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17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a

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holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

6. In view of the above discussion, this Court is

of the opinion that there is no reason to interfere with

the impugned judgment and order passed by the learned

Courts below. Hence, this petition deserves to be

dismissed at admission stage and accordingly dismissed.

(SANDEEP N. BHATT,J) SRILATHA