[Cites 3, Cited by 0]
Gujarat High Court
Baria Ratansinh Muljibhai vs Baria Kaushalyaben D/O Of Rajendrasinh on 5 February, 2026
NEUTRAL CITATION
C/SCA/1499/2026 ORDER DATED: 05/02/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1499 of 2026
================================================================
BARIA RATANSINH MULJIBHAI
Versus
BARIA KAUSHALYABEN D/O OF RAJENDRASINH & ORS.
================================================================
Appearance:
MR MOHSIN M HAKIM(5396) for the Petitioner(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 05/02/2026
ORAL ORDER
1. The present petition is filed under Article 227 of the
Constitution of India by the petitioner-original defendant
seeking following reliefs.
"A. Quash and set aside the Order passed by the Ld.
Appellate Court in Regular Civil Civil Appeal No.19 of 2025
dated 07.01.2026 ('Annexure-A);
B. Pending admission hearing and final disposal of the
present petition, direct the parties to maintain status quo in
respect of the suit property bearing Revenue Survey
no.446/P2 admeasuring 22966 sq. mtrs. (18009 sq. mtrs.) of
Village Dungariya, Taluka: Devgadh Baria, District: Dahod;
C. Pending admission, hearing and final disposal of the
present petition, stay the preliminary decree passed by the
Ld. Trial Court dated 28.11.2025 ('Annexure-B');
D. Pending admission, hearing and final disposal of the
present petition, stay the further proceedings in Regular Civil
Suit No.27 of 2021;
E. Grant ad-interim relief in terms of Paras B, C and D;
F. ****."
NEUTRAL CITATION
C/SCA/1499/2026 ORDER DATED: 05/02/2026
undefined
2. Heard learned advocate Mr. Mohsin M. Hakim for the
petitioner.
3. The brief facts of the case are as under:-
3.1 Regular Civil Appeal came to be filed by the present
petitioner assailing the judgment and decree passed by the
Principal Civil Senior Judge in Regular Civil Suit No.27 of
2021. Learned trial Court decreed the suit and partitioned the
suit property by holding that plaintiff and defendant are having
one half equal share in the suit land. District Collector under
Section 54 of the Code of Civil Procedure, 1908 (hereinafter
referred to as 'the Code') was directed to measure one half
portion of plaintiff's share and was directed to partition the suit
property by metes and bounds and the possession which came in
the share of plaintiff be handed over. The said judgment and
decree was assailed by the petitioner and in the appeal
proceedings, the present petitioner prayed for stay of operation
and the implementation of impugned decree. The application
NEUTRAL CITATION
C/SCA/1499/2026 ORDER DATED: 05/02/2026
undefined
Exhibit-4 came to be rejected against which the present petition
is filed by the petitioner-original defendant.
4. Learned advocate for the petitioner has contended that it is
an admitted position on record that plaintiff had never carried
out any agricultural activities in the suit land and there appears
to be two shops constructed over the suit land. The District
Collector has implemented the preliminary decree of partition
and the half portion of the land in question has been handed over
to the plaintiff and the entry of partition has already been
mutated. However, while partitioning the suit property, Kharaba
land has come in the share of appellant and fertile land has gone
in the share of plaintiff. In view of this, it is submitted that
respondent be directed to maintain status quo with regard to the
suit land till disposal of the First Appeal. It is further contended
that if status quo be maintained by respondent, no prejudice
would be caused to the respondent. It is further submitted that
irreparable loss has been caused to the petitioner as Kharaba
land has come in the share of the petitioner. Except above, no
NEUTRAL CITATION
C/SCA/1499/2026 ORDER DATED: 05/02/2026
undefined
other submissions are canvassed by learned advocate for the
petitioner.
5. I have considered the submissions canvassed by learned
advocate for the petitioner and on perusal of the judgment and
decree as well as other papers, it appears that suit which was
filed by respondent was for a prayer of partition of the land in
question. After recording the evidence, learned trial Court
decreed the suit and the suit property was partitioned wherein
one half portion of the land in question came in the share of
plaintiff and remaining one half share of the land came to the
defendant-petitioner. During the course of submission, learned
advocate for the petitioner submitted that pending the hearing of
Exhibit-4 application, District Collector executed the decree and
Kharaba land came into the share of petitioner-defendant and
fertile land came in the share of plaintiff-respondent. It is also
submitted that the map which is produced at page No.77 of the
compilation clearly indicates that there are constructions in the
NEUTRAL CITATION
C/SCA/1499/2026 ORDER DATED: 05/02/2026
undefined
portion of the land which has come in the share of defendant and
some construction is found in the land which has gone in the
share of plaintiff. Defendant, according to learned advocate for
the petitioner was present when the partition was executed on
the land by the office of the District Collector.
6. While rejecting the application, learned Additional District
Judge has observed that the application for stay has become
infructuous due to implementation of the preliminary decree
which is passed by learned trial Court. So far as the question of
prima facie case is concerned, no material is placed on record to
indicate that the appellant has been given Kharaba land and
fertile land has been given to the respondent. As I do not find
any illegality or perversity in the impugned judgment and decree
and order passed by learned Additional District Judge. The
scope under Article 227 of the Constitution of India is very
limited, unless the Court below commits any error of law and
the judgment and order is found to be illegal and arbitrary, this
Court cannot exercise the powers vested under Article 226 of
NEUTRAL CITATION
C/SCA/1499/2026 ORDER DATED: 05/02/2026
undefined
the Constitution of India to quash and set such order and
judgment impugned.
7. In view of the above observations, the present petition
lacks merits and the same stands rejected.
8. It is made clear that learned Additional District Court shall
decide the appeal on merits and in accordance with law without
being influenced by the observations made hereinabove by this
Court.
(D. M. DESAI,J)
RINKU MALI
