Gujarat High Court
State Of Gujarat vs Fakir Mohamdkhanji Yawarkhanji ... on 5 May, 2025
NEUTRAL CITATION
C/CRA/24/2018 ORDER DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 24 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In
R/CIVIL REVISION APPLICATION NO. 24 of 2018
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STATE OF GUJARAT & ORS.
Versus
FAKIR MOHAMDKHANJI YAWARKHANJI CHAUHAN & ORS.
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Appearance:
MR BHARAT VYAS, AGP for the Applicant(s) No. 1,2,3,4
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Opponent(s) No. 1
MR HIMANSHU C DESAI(6832) for the Opponent(s) No. 1.1,1.2,1.3,1.4,1.5
MS TEJAL A VASHI(2704) for the Opponent(s) No.
10,11,12,13,14,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/05/2025
ORAL ORDER
1. The present Revision Application has been filed to quash
and set aside the order dated 21.08.2017 passed below Exhibit-55
by 4th Additional Senior Civil Judge and Additional Chief
Judicial Magistrate, Vadodara whereby the Special Execution
Application No.72 of 1991 was allowed.
2. For the sake of convenience, the parties are referred to as
decree holder and defendants herein.
3. By an order dated 21.08.2017, the original defendants were
directed to hand over possession of property as mentioned in
Schedule-1 & 2 of paragraph No.10 of the said application and
aggrieved by the said order, the present Revision Application is
filed.
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4. Brief facts arising in the present Civil Revision Application
are that the decree holder in Special Execution Application
No.72 of 1991 had filed application under Order 21 Rule 35 of
the Code of Civil Procedure to issue possession warrant against
the defendant and asked for possession from the defendant in
view of the judgment passed in Special Civil Suit No.33 of 1960.
The details of the property is mentioned at paragraph No.10 of
the Execution Application, more particularly stated in Schedule-
1 & 2 amongst survey No.175 acre land and 10 bighas grass land.
On 21.08.2017, the said application of the decree holder was
granted and warrant under the provision of Order 21 Rule 35 of
the Code of Civil Procedure of the immovable property
mentioned in Execution Application at paragraph No.10-B,
schedule-1 & 2 were issued. The defendant Nos.2 to 14 filed
application under the provisions of Order 1 Rule 10 of the Code
of Civil Procedure, 1908 being Civil Application (To Join the
Party) No.2 of 2018 and after hearing the parties, the said
application was allowed.
5. The defendant Nos.2 to 14 have mainly contended that
they are the tenants of the property in question and since a
decade are cultivating the land and have been declared as lawful
tenants under the provisions of Bombay Tenancy and
Agricultural Land Act, 1948 and the defendant Nos.2 to 14 came
forward with a case that physical possession of the land in
question is with them and the predecessors of defendant Nos.2 to
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C/CRA/24/2018 ORDER DATED: 05/05/2025
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14 have been declared as tenants by the operation of law, and
therefore, they are in exclusive possession of the property. The
defendant Nos.2 to 14 had also filed a rejoinder to the affidavit-
in-reply filed by the decree holder on 26.09.2018 and alongwith
the said rejoinder, the copies of the revenue records showing the
name of defendant Nos.2 to 14 has been clearly stated which is
produced at Annexure-C page47 to 60 as under:-
Sr. District Taluka Moje Block/ Old Block/Survey
No Survey No.
No.
1. Narmada Tilakwada Agar 491 22
6 Narmada Tilakwada Agar 265 290
7. Narmada Tilakwada Agar 271 306
9. Narmada Tilakwada Agar 474 211B
10. Narmada Tilakwada Agar 334 335/2/Paiki 2
12. Narmada Tilakwada Agar 548 9
6. At the time of hearing of the present Revision Application,
the attention was drawn to the affidavit filed by
Fakirmohamadkhanji Yawarkhanji Chauhan dated 30.08.2019
wherein it has been stated that the lands which were subject
matter of order dated 25.07.1963 (Annexure-A) to the Civil
Application No.2 of 2018 in Civil Revision Application No.24 of
2018 will not be claimed by decree holder.
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C/CRA/24/2018 ORDER DATED: 05/05/2025
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7. Learned advocate Mr. Himanshu C. Desai for the decree
holder had also orally stated that he has instructions on behalf of
the decree holder that the decree holder does not raise any claim
with respect to the properties which are in possession of
defendant Nos.2 to 14 and more particularly, the revenue record
which is produced with Annexure-C of the rejoinder to the
affidavit-in-reply filed on 26.09.2018 which are mentioned at
paragraph No.5 hereinabove, and therefore, as stated that in
view of the said fact as the possession of the said property
mentioned hereinabove is in possession of defendant Nos.2 to
14, the order dated 21.08.2017 passed below Exhibit-55 be
modified to that extent.
8. Learned senior advocate Mr. Jal Unwala assisted by
learned advocate Ms. Tejal Vashi has mainly argued that
defendant Nos.2 to 14 are in possession of the property
mentioned at paragraph No.5 hereinabove and they are the
tenants of the property in question and since decades they have
been cultivating the land and pursuant to that they have been
declared as lawful tenants under the provisions of Bombay
Tenancy and Agricultural Land Act, 1948 and there is no decree
that has been passed against the defendant Nos.2 to 14 for
handing over the possession of the suit property and defendant
Nos.2 to 14 are having independent right in the property in
question, and therefore, the Executing Court could not passed
order directing the defendant Nos.2 to 14 to hand over the
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possession unless and until the decree holder files an application
of resistance and obstruction by defendant Nos.2 to 14 and until
all question including question relating to right, title and interest
in the property are decided by the Court under the provisions of
Order 21 Rule 97, 99 and 101 of Code of Civil Procedure. The
Executing Court could not have passed the order of possession
warrant with respect to the premises mentioned at paragraph
No.5 hereinabove.
9. The learned advocate for the defendant Nos.2 to 14 have
also filed affidavits on 08.04.2025 wherein it has been stated that
as the original tenant has no objection and shall not claim any
right with respect to the property mentioned at paragraph No.5
hereinabove. The defendant Nos.2 to 14 do not claim right of
any other property other than those mentioned at paragraph
No.5 hereinabove.
10. The learned Assistant Government Pleader has also argued
that other than the properties which are stated in paragraph
No.5 hereinabove, actual possession of the rest of the property is
with other tenants and the Executing Court ought to have
inquired into the said fact and as the possession of the said
property is not with the petitioner unless the said parties are
heard, the Executing Court could not have issued possession
warrant. The learned Assistant Government Pleader has also no
objection to the consensus arrived at between the private parties.
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C/CRA/24/2018 ORDER DATED: 05/05/2025
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The other issue that was raised by the learned Assistant
Government Pleader was with respect to the territorial
jurisdiction of the Executing Court to hear and decide the said
dispute but the said fact having already been decided wherein the
said issue of jurisdiction of the Executing Court has already been
decided in Civil Revision Application No.224 of 2018, and
therefore, the said issue also does not survive.
11. Having heard learned advocates for the parties and having
taken into consideration the fact that by affidavit dated
13.08.2019, defendant No.2 has in the said affidavit stated that
he will not claim any right to the land which are subject matter
of the order dated 25.07.1963. The learned advocate for the
decree holder has also orally stated at bar that as he has filed his
Vakalatnama, he has instruction for and on behalf of the decree
holder that the decree holder shall not claim possession and seek
execution with respect to the property mentioned at paragraph
No.5 hereinabove.
12. In view of the said fact, present Civil Revision Application
is disposed of and in view of the understanding that have arrived
at between the parties, the order dated 21.08.2017 is modified to
the extent that the properties which are mentioned at paragraph
No.5 hereinabove will not be taken under warrant under Order
21 Rule 35 of the Code of Civil Procedure and with respect to the
other properties, the petitioner has already stated that the
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possession of the said properties is not with the petitioner, and
therefore, the Executing Court is required to decide on the
remaining properties excluding other remaining properties other
than the one mentioned at paragraph No.5 hereinabove in
accordance with law.
13. In view of the above findings, the present petition is
disposed of.
14. In view of the order passed in main matter, Civil
Application does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
