Shri Surat Panjarapole Charitable ... vs Decd Khushalbhai Ravjibhai Through ...
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Gujarat High Court

Shri Surat Panjarapole Charitable ... vs Decd Khushalbhai Ravjibhai Through ... on 6 November, 2025

                                                                                                               NEUTRAL CITATION




                              C/CRA/445/2025                                   ORDER DATED: 06/11/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/CIVIL REVISION APPLICATION NO. 445 of 2025
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                                    SHRI SURAT PANJARAPOLE CHARITABLE TRUST
                                                     Versus
                                 DECD KHUSHALBHAI RAVJIBHAI THROUGH HEIRS & ORS.
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                       Appearance:
                       MR AB MUNSHI(1238) for the Applicant(s) No. 1
                       MR VIREN S DAVE(6333) for the Applicant(s) No. 1
                       NOTICE SERVED for the Opponent(s) No. 1.2,1.3,1.4,1.5,1.6
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                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 06/11/2025

                                                            ORAL ORDER

1. Present CRA is preferred u/s 115 of the Code of Civil Procedure, 1908 (in short "the Code") challenges order passed below applications Exhs.1,14 and 24 in Execution Petition No.39 of 2021 by which the learned 2 nd Addl. Senior Civil Judge, Surat declined to execute the decree on the ground that the relief claimed in the execution petition by the petitioner is beyond the judgment and decree passed in Regular Civil Suit No.248 of 1983.

2. Heard learned advocates for the parties. Though notice is served to other side, none remained present for the respondents.

2.1 Considering trivial issue involved in the matter, upon request of learned advocate Mr. AB Munshi, petition taken up for final hearing today.

3. Learned advocate for the petitioner after taking this Court through the facts of the case, more particularly,

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impugned order as well as the judgment and decree passed in Regular Civil Suit, would submit that at the time of filing of the Regular Civil Suit, the judgment debtor had made kachcha construction of 21' x 21' ft on the land belongs to and owned by the petitioner. He would further submit that the suit was proceeded further by the learned trial Court and decreed in favour of the petitioner. It was held by the learned trial Court that the judgment debtor is a trespasser in 21' x 21' ft land belongs to and owned by the petitioner. The learned trial Court further directed the judgment debtor to remove kachcha construction within two months from the date of the judgment and decree and to handover the vacant and peaceful possession of encroached land to the petitioner. He would further submit that at first point of time, Regular Darkhast No.64 of 1989 was filed, as the defendant - judgment debtor did not follow declaration and injunction issued by the Court. The Darkhast was proceeded and kachcha construction was removed and thereafter, the plaintiff has withdrawn the Darkhast and it was disposed of accordingly. He would further submit that later on, the judgment debtor constructed two walls admeasuring 17' x 14' ft and 4' x 9' ft unauthorizedly by again encroaching upon the same parcel of land and therefore, again the original plaintiff has filed Darkhast before the learned trial Court and sought possession of the disputed land by way of relief which was granted in the civil suit. However, the learned trial Court vide impugned order declined to grant the relief claimed in the application and dismissed the Darkhast.

3.1 Learned advocate Mr. Munshi assailed the findings and

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observation of the learned trial Court that the petitioner is trying to execute the order which is not passed by the learned civil Court in civil suit. He would further submit that said finding is erroneous. He would further submit that the learned civil Court in civil suit has specifically believed that the defendant - judgment debtor is a trespasser and therefore, if he continued any activity under the trespassing, it would cover under the judgment and decree passed by the learned civil Court in Regular Civil Suit. He would further submit that the technical interpretation of the judgment and decree has been made by the learned Executing Court and wrongly believed that the petitioner is trying to execute the order and decree which is not passed in civil suit and therefore, he submits that the learned trial Court has committed serious and jurisdictional error.

3.2 Upon above submissions, learned advocate Mr. Munshi for the petitioner requests to allow this petition.

4. As noted herein above, the respondents are served, but none remained present.

5. At the outset, I may reproduce the operative part of the judgment and decree passed in Regular Civil Suit No.248 of 1983 so as to understand its nature,

"The plaintiff's claim is allowed with costs. It is hereby ordered that the defendant, on the land measuring 21-|- 21' mentioned in para-2 of the plaintiff's claim, has constructed the roof as a trespasser. And therefore, the defendant shall remove the roof within a period of 2 months from today and hand over the direct and quiet possession of the open land under the roof to the

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plaintiff. If the defendant fails to do so, the plaintiff shall be entitled to remove the disputed roof at his own expense within the period mentioned above and shall be able to obtain direct and quiet possession of the same.

The defendant shall pay the plaintiff a monthly rent of Rs. 10/- from the date of the suit i.e. 10-2-83 till the date of handing over the direct and quiet possession of the suit property to the plaintiff.

The defendant shall bear the costs of the present suit and the plaintiff's costs of the suit.

To draw up a decree according to the order."

6. In the aforesaid judgment and decree, the learned trial Court has believed that the judgment debtor is a trespasser and has carried out construction in the land belongs to the petitioner plaintiff. Thereafter, the learned trial Court directed the defendant judgment debtor to handover vacant and peaceful possession of the land, which they have trespassed and also directed to remove illegal construction, which was noticed during the proceedings of the suit and removed at first blush of filing of Regular Darkhast No.64 of 1989. But later on, again some construction has been made by the judgment debtor or his legal heirs and therefore, another Darkhast was filed by the petitioner plaintiff and also moved applications at Exhs.14 and 24 to give effect to the aforesaid judgment and decree. It was contested by the judgment debtor by unsuccessfully raising the issue of limitation. However, the learned trial Court declined to execute the decree on the ground that the judgment and decree does not speak of removal of construction of two walls constructed on the disputed land and therefore, the petitioner plaintiff - decree holder is seeking execution of order and

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decree which is not passed by the learned civil Court in civil suit. The interpretation of the learned trial Court is found faulty and erroneous. The judgment debtor is believed to be trespasser, he has not challenged this judgment and decree and hence, that finding attained finality, if he carried out any construction be it kachcha or pakka, even subsequent to passing of the decree, the petitioner plaintiff is not required to file another suit for removal of such kachcha or pakka construction. Once judgment debtor is declared encroacher upon parcels of land belongs to the petitioner, any of his activity upon such land is illegal and covered under the judgment and decree passed in Civil Suit No.248 of 1983. The interpretation of the learned trial Court that no specific order is passed to remove particular construction is hyper technical interpretation and defeat the very cause of action of filing of the suit to remove the trespasser from the petitioner's land.

7. In view of above, without dealing any further merits of the case since the learned trial Court has committed jurisdictional error in passing the impugned order, present petition requires consideration.

8 In the result, present petition is allowed and impugned order dated 12.2.2025 passed by the learned Principal Senior Civil Judge, Surat below applications Exhs.1,14 and 24 in Execution Petition No.39 of 2021 is hereby quashed and set aside.

8.1 The proceeding of Darkhast is restored to the concerned Court along with proceedings of applications below Exhs.14 and 24.

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8.2 The learned trial Court is directed to decide the issue afresh on its merits and in accordance with law keeping in mind the guidelines issued by the Hon'ble Apex Court, by which, the Hon'ble Apex Court has directed execution proceedings to be completed within six months.

Direct service is permitted.

(J. C. DOSHI,J) SHEKHAR P. BARVE