Gujarat High Court
Surubha Pathubha Jadeja vs Mundra Port And Special Economic Zone on 13 September, 2024
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C/SCA/5329/2023 ORDER DATED: 13/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5329 of 2023
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SURUBHA PATHUBHA JADEJA
Versus
MUNDRA PORT AND SPECIAL ECONOMIC ZONE & ORS.
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Appearance:
MR JV JAPEE(358) for the Petitioner(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/09/2024
ORAL ORDER
1. Order dated 20.01.2023 passed below Exh.133 in Special
Civil Suit No.173 of 2018 has been challenged by way of this
petition under Article 227 of the Constitution of India.
2. Facts of the case are as under :-
2.1. The ancestor of the petitioner was owner and occupier of
agricultural land bearing survey no.169 paiki of village Dhurb,
Ta. Mundar. The said land was mortgaged for 99 years by the
ancestor of the petitioner to one Sahbji Tejmalji Parmar in 1966.
The petitioner filed Civil Suit No.9 of 2008 for redemption of said
mortgage before the learned Civil Court, Bhuj. The learned Trial
Court passed preliminary decree by judgment and order
directing the petitioner to deposit before the Court Rs.10400/-
within 15 days or in the alternative pay the said amount to
defendant no.1 Balwantsinh Parmar and upon the deposit of the
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said amount, the said defendant shall hand over the mortgage
deed along with any of the documents relating to the suit land to
the petitioner. The appeal filed by legal heir of mortgagee against
the judgment and decree was not entertained by the appellate
Court by dismissing the application for condonation of delay in
filing of the appeal. Thereafter, final decree was passed directing
legal heir of the mortgagee to execute document for redemption
of the mortgage and get it registered before the Sub Registrar.
Since legal heir of mortgagee did not cooperate in compliance of
the final decree, the petitioner filed Execution application No.14
of 2009. During the aforesaid proceedings, the Court was party
to the suit, no objection was raised by the Collector on behalf of
the State Government. The Executing Court by way of order
dated 15.11.2010 below Exh.17 and Exh.32 in Execution
Petition No.14 of 2009 directed to issue possession warrant and
appoint the Court Commissioner to take possession of the suit
land from the concerned defendant and handover the same of
the petitioner. The petitioner states that respondent no.1 filed
Suit being Special Civil Suit No.16 of 2010 in the learned Trial
Court for declaration that decree passed in SCS No.9 of 2008
and subsequent registered deed for redemption of mortgage
dated 10.11.2019 do not confer any right or title to the petitioner
and it is not binding the rights of respondent no.1. It is
submitted that before the learned Trial Court both the parties
filed purshish at Exh.84 to maintain status and on the basis of
said purshish, learned Trial Court passed order dated
23.02.2016 directing the parties to maintain status quo for all
purpose till final disposal of the suit. Thereafter, it is stated that
respondent no.1 had take steps to alter the nature and status of
suit land with the help of JCB machines. The boundaries of the
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suit land was removed and boundary marks were also removed
to abolish identity of the said land. Therefore, the petitioner filed
application Exh.133 to issue directions to record panchnama of
the suit land to bring on record the alterations and changes
made by respondent no.1 in the suit land in breach of order of
status quo. Learned Trial Court vide order dated 20.01.2023
dismissed the application. Hence, present petition.
3. Heard learned advocate Mr. J.V.Japee for the petitioner
and learned advocate Mr.Satyam Chhaya for the respondent.
4. Sum and substance of the argument of learned advocate
for the petitioner is that in Civil Suit, parties agreed to maintain
status quo for all purposes with regard to suit land in dispute
and on consensus, the Court disposed of injunction application
directing both the parties to maintain status quo for all purposes
in regard to possession of suit land. It is further submitted that
later on under guise of cleaning land, plaintiff company tried to
disturb measurement and marks etc. and as such have breached
order of status quo and therefore, defendant has filed application
for disobedience of injunction. It is submitted that in this
circumstances, the defendant wanted to bring on record
circumstances alleged to have been changed by the plaintiff and
therefore, he preferred application Exh.133 to take Court
Commission. However, learned Trial Court wrongly believed that
Exh.133 is filed for the purpose of collecting evidence. It is
submitted that intention of the defendant was only to bring on
record condition of disputed property subsequent to order of
status quo order passed by the Court. It is further submitted
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that learned Trial Court did not accept the same and wrongly
rejected application and therefore, it is submitted to allow this
petition.
5. Hotly objecting present petition, learned advocate
Mr.Chhaya for the respondent / original plaintiff would submit
that present petitioner has no title to the disputed property. He
would submit that in collusive suit, the petitioner got decree
without joining Adani Port and SEZ as party to whom
Government of Gujarat has allotted huge parcel of land for the
purpose of developing SEZ and therefore, decree obtained by the
petitioner behind back is collusive and therefore, Adani Port and
SEZ has filed SCS No.173 of 2018 to set aside collusive decree.
He would submit that status quo position has not been altered
by Adani Port or SEZ. It is further submitted that Adani Port and
SEZ has done nothing to change status quo position and
therefore, application filed by the petitioner before the learned
Trial Court was only with a view to pressurize plaintiff and as
such it was pressure tactics. He further submitted that learned
Trial Court rightly discarded application and therefore, no
interference is called for in the impugned order. It is further
submitted that application was moved by the petitioner in the
year 2023 and thereafter two monsoon took place and cyclone
also took place in Kutch area and as such basic area of disputed
property have been changed, plaintiff has done nothing so to
alter status-quo position and therefore, he submits to dismiss
the petition.
6. Apt to note that the application has been decided in the
year 2023 and it is moved for the purpose of appointment of
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Court Commissioner to bring subsequent change alleged to have
been taken place in the disputed property. The learned Trial
Court believed that the application was for the purpose of
collecting evidence and also believed that there is no change in
the status-quo position of disputed property. Learned Trial Court
has also believed that issue of possession is yet to be decided. In
this circumstances, learned Trial Court believed not to grant
application. What could be noticed that after January, 2023, two
monsoon took place and interregnum period, cyclone also took
place and therefore, there might be change in the surface of the
disputed property. Local marks and terrain as well must have
been changed. Under the circumstances, this Court is of the
opinion that application Exh.133 is required to be re-decided by
the Court below and therefore, without expressing anything on
merits of the case, while allowing the petition, I remand and
restore application Exh.133 to the file of learned Trial Court and
directed to decided the same again in accordance with law
keeping in mind that two monsoon season and one cyclone has
passed between interregnum period. Learned Trial Court shall
also keep in mind that injunction application was moved by the
plaintiff Adani Port and SEZ. No relief was asked by the present
petitioner.
7. Looking to the peculiar facts and circumstances of the
case, final hearing of the Special Civil Suit No.173 of 2018 (old
No.16 of 2010) pending on file since 14 years is required to be
decided on its own merits as early as possible. Both the parties
are given liberty to file necessary application before the learned
Trial Court for expedite hearing of the suit. The suit shall be
decided by the learned Trial Court in accordance with law
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keeping in mind backlog with it. The petition stands disposed of.
(J. C. DOSHI,J)
SATISH
