Gujarat High Court
Virenkumar Dipakbhai Patel vs Heirs Of Decd. Ketankumar ... on 6 September, 2023
Bench: J. C. Doshi
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C/SCA/15664/2019 ORDER DATED: 06/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15664 of 2019
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VIRENKUMAR DIPAKBHAI PATEL
Versus
HEIRS OF DECD. KETANKUMAR SATISHBHAI PATEL
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Appearance:
MR DARSHAN V SONI(9820) for the Petitioner(s) No. 1,2,3,4,5
MR PANKAJ K SONI(1940) for the Petitioner(s) No. 1,2,3,4,5
PARTH P SONI(8387) for the Petitioner(s) No. 1,2,3,4,5
for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1.1,1.2,2,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/09/2023
ORAL ORDER
1. Heard Mr. Pankaj Soni, learned advocate for the unsuccessful
plaintiffs of Special Civil Suit No. 59 of 2011 filed before the
learned Principle Senior Civil Judge, Ankleshwar.
2 By way of this petition, the unsuccessful plaintiffs-petitioners
challenges the concurrent findings passed below Exh. 5 in Special
Civil Suit No. 59 of 2011 confirmed by the Appellate Court in Civil
Misc. Appeal No. 3 of 2014.
3. The brief facts of the case are as under:-
3.1 That, the N.A.Land Block Survey No. 753 admeasuring 00-
76-89 was owned and occupied by one Mohanbhai Narsinhbhai
Patel who agreed to transfer the said land vide Agreement to Sale
dated 19.9.1985 to one Nazirbhai Ibrahimbhai, President of Navyug
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Co.operative Housing Society Ltd. But sale deed was not executed.
Thereafter, Mohanbhai Narsinhbhai Patel filed Special Civil Suit
No. 18 of 1987 before the learned Sr.Civil Judge Court, Bharuch
wherein, the decree was passed in his favour and Execution Petition
No. 18 of 1990 was filed. Thereafter on 24.1.1996, Mohanbhai
Narsinhbhai Patel transferred the physical and actual possession of
the said land vide Assignment Deed dated 24.1.1996 . Since then,
the physical and actual possession of the said land is with the
petitioners. Thereafter, one Bharatbhai Jayrambhai Ahir interfered in
the said land. Therefore, the petitioners filed Regular Civil Suit No.
183 of 2010 before the court of learned Principal Senior Civil Judge,
Ankleshwar along with Exh. 5 application which came to be allowed
on 21.12.2010 and interim stay was granted in favour of the
petitioners till the disposal of the Regular Civil Suit No. 183 of
2010. Thereafter, the matter was settled between the parties and as
per settlement, judgement and decree was passed in favour of the
petitioners by the learned Principal Sr.Civil Judge, Ankleshwar in
Regular Civil Suit No. 183 of 2010.
3.2. Thereafter, without any legal rights, taking law in hands and
without title clearance, the heirs of deceased Mohanbhai Narsinhbhai
Patel transferred the said land by Regd.Sale Deed on 7.5.2010. As
soon as the petitioners came to know regarding the Regd. Sale Deed,
the petitioners published a notice dated 3.2.2011. The respondents
taking law in hands were trying to trespass and trying to grab the
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possession of the said land from the petitioners. Therefore, the
petitioners filed Special Civil Suit No. 59 of 2011 before the learned
Principal Senior Civil Court, Ankleshwar for declaration and
permanent injunction. The petitioners also submitted Exh. 5
application inter alia seeking interim injunction to the effect that,
pending and final disposal of the said suit, restraining the
respondents to transfer the land in question in any way and not
disturb the peaceful and actual possession of the petitioners, which
came to be dismissed on 10.1.2014 by the learned Principal Sr. Civil
Judge, Ankleshwar.
3.3 Being aggrieved and dissatisfied by the order below Exh.5
dated 10.1.2014, the petitioners filed Civil Misc. Appeal No. 3 of
2014 before the learned 6th Additional District Judge Court,
Ankleshwar. The said appeal is dismissed vide judgement and order
dated 28.2.2019. Therefore, being aggrieved and dissatisfied with
the Order dated 10.1.2014 passed by the learned Principal Sr.Civil
Judge, Ankleshwar in Special Civil Suit No. 59 of 2011 and
judgement and order dated 28.2.2019 passed by the learned 6 th
Additional District Judge, Ankleshwar in Civil Misc. Appeal No. 3
of 2014 , therefore, this petition is preferred.
4. It remains undisputed that the petitioners are not able to get the
relief under Order 39 Rule 1 and 2 read with Section 151 of the
Civil Procedure Code more particular calling it under the
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discretionary jurisdiction, the learned trial Court has categorically
believed that without registered sale deed, the plaintiffs cannot
claim any title and possession in the subject property. In the other
words, the plaintiffs were failed to get any relief under the
discretionary jurisdiction. The plaintiffs were also failed in getting
relief under Order 43 Rule 1(r) of the CPC which is a further
circumscribe jurisdiction and whereby, the Appellate Court did not
accept to review or replace its own view, upon the discretionary
order passed by the Court below on the reason that until the person
claiming the discretionary relief proves that the learned trial Court
has acted contrary to the settled principal of law and the judgment
impugned therein is perversed and arbitrary.
5. The petition under Article 227 of the Constitution of India,
they challenge both the above orders.
6. At the outset, let refer the nature of scope of the supervisory
jurisdiction under Article 227 of the Constitution of India, which is
enlightened in case of Garment Crafts Vs. Prakash Chand Goel
reported in (2022) 4 SCC 181, wherein the Hon'ble Apex Court in
para 15 and 16, held as under:-
"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
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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 [Celina Coelho Pereira (Ms) and
Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1
SCC 217]. The jurisdiction exercised is in the nature of
correctional1 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., (2001) 8 SCC
97 has 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
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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."
7. This Court is not inclined to replace its own view upon the
concurrent discretionary view taken by the Court below, more
particularly considering aspects that the plaintiff has no title as
his claim of title is not backed by any registered agreement or
sale deed. It is also undeniable presumption that possession
fallows title.
8. Learned advocate Mr. Soni appearing for the petitioners has
failed to point out any pattern illegality committed by the Court
below in arriving under discretionary jurisdiction. It is important to
note that the suit is pending since 2011 and if the plaintiffs are
surviving without any interim relief in their favour since then, there
is no question to grant the interim relief in favour of the plaintiffs at
this juncture.
9. For the forgoing reasons, this petition does not survive and
accordingly stands dismissed. Considering the age of the suit, it is
expected that the learned trial Court shall hear and decide the suit
expeditiously without being influenced by the earlier orders passed
below Exh. 5 and confirmed in Appeal From Order or disposal of
this petition. Notice stands discharged.
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(J. C. DOSHI,J)
BEENA SHAH
