Whether Reporters of Local Papers may be allowed to see 1 the judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the 3 judgment ?
Whether this case involves a substantial question of law 4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================= IBRAHIMBHAI NOOR MOHAMMADBHAI MIMANJIBHAI KHORAJIYA & 1
- Petitioner(s) Versus JANUBEN AAHMADBHAI KHORAJIYA & 4 - Respondent(s) ================================================= Appearance :
MR ANSHIN H DESAI for Petitioner(s) : 1 - 2.
NOTICE SERVED for Respondent(s) : 1 - 5.
MR VIMAL M PATEL for Respondent(s) : 1 - 5.
================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 31/07/2012 CAV JUDGMENT
1. Petitioners, under Article 226 of the Constitution of India challenged the legality and propriety of the order passed below Exh.19 in Regular Civil Suit No.46 of 2010 dated 14.3.2011 by filing appeal being Miscellaneous Civil Appeal No.10 of 2011 preferred by the original defendants respondents before the District Court, Morbi. It emerges from SCA/7166/2011 2/6 JUDGMENT the record that vide order dated 11.5.2011, District Court, Morbi quashed and set aside the order of trial Court passed in Regular Civil Suit No.46 of 2010.
2. To briefly state the facts the petitioners are the original plaintiffs, who referred Regular Civil Suit No.46 of 2010 inter alia praying for declaration and permanent injunction against respondents defendants upon the land bearing Survey No.100/3 admeasuring Hectare 16592 situated in the sim of village Bhojpara, taluka: Wankaner. The case of the petitioners plaintiffs is that they are the owners of the Revenue Survey Nos.100/1, 100/2 and 100/3,( hereinafter referred to as " the suit land") which originally belonged to the respondents defendants. They chose to exchange it with their land bearing Survey No.145/1 essentially for the purpose of geographical locations of both the parcel of lands. In other words, the land of Revenue Survey No.100/3 was given to the petitioners plaintiffs in lieu of its land bearing Survey No.145/1 to ensure that the entire parcel of land situated in the appurtenant land can be enjoyed by the plaintiffs. The petitioners have sought declaration to the effect that they are in possession of the suit land and in the alternative, the respondents be directed to register the sale deed in favour of the petitioners and even on the ground of adverse possession, the suit land be declared to be of the ownership of the petitioners.
SCA/7166/2011 3/6 JUDGMENT
3. The application for injunction was preferred seeking protection against the respondents herein not to obstruct the possession of the petitioners or not to take away the possession of the suit land.
4. Application Exh.19 was preferred, Panchnama of which also was drawn and the Court, after hearing both the sides, allowed such an application.
5. Being aggrieved by the same, when the respondents defendants challenged the same before the appellate forum, which set aside the order of injunction. Therefore, the present challenge.
6. Both the sides have fervently made their submissions in favour of their respective cases.
7. Before adverting to the submissions of both the sides, it would be appropriate to consider the order of the trial Court, as it can be noted that it is a suit for specific performance of an oral agreement of the year 1962. It is also urged that the petitioners are cultivating the suit land after exchanging the same with the respondents. It was of the father of the respondents with whom the said oral agreement was entered into. This pertains to Survey No.100/3. According to the plaintiffs petitioners, there was an exchange of the said land in the year 1962 and from then onwards, the same is being cultivated and enjoyed by the petitioners.
SCA/7166/2011 4/6 JUDGMENT The trial Court relying on in the case of Rame Gowda (Dead) By LRS. vs. M.Varadappa Naidu (Dead) by LRS and another reported in (2004)1 SCC 769 held that the petitioners plaintiffs are in a settled legal position. It also further held that the title could not be decided at an interim stage. However, from the Panchnama, the possession should be prima facie held to be that of the plaintiffs. Accordingly, it allowed the application Exh.19 directing the respondents to maintain the status quo till the finalization of the suit.
8. The appellate forum was of the opinion that the oral lis was of the year 1960. However, no documents were produced indicating deed of exchange nor is there any record to indicate the possession of the plaintiffs on the said land. Admittedly, on the revenue record, Survey No.100/3 continues to be that of the respondents (original defendants). The land which was given in exchange of the said Revenue Survey No.100/3, as per the noting of the Court, there is no record to reflect its ownership being of the respondents.
9. The only document, which is sought to be dependent upon is the Panchnama executed in presence of both the parties. The factum of the Panchnama is not being disputed. However, the Court was of the opinion that the same cannot be determinative of oral lis or exchange of land by virtue of such oral lis.
SCA/7166/2011 5/6 JUDGMENT
10. In aforementioned circumstances, the Panchnama drawn under Order 26 Rule 9 of Civil Procedure Code is examined. It indicates that there are no boundaries between Survey Nos.100/1,100/2 and 100/3. There is a water tank constructed upon Survey No.100/2. From Survey No. 100/2, water also goes from bore, which is situated in Survey No.100/1. There are other details of the Panchnama, which go to indicate that the land is being cultivated presently and the trial Court, on the basis of the said panchnama, was of the opinion that the petitioners are in the settled possession of the land. Through the electrical connection, which is of the plaintiffs, water was provided to these fields. This is not being challenged by either side and the trial Court also noted that, had there been any objection to such Panchnama, the same could have been communicated by the other side.
11. The appellate Court, of course, had pointed out that there is no deed of exchange having been brought on record. It also has rightly pointed out that there is nothing to indicate that in the revenue record, for all these years, the possession of the ownership is shown to be that of the plaintiffs. In such circumstances, this belated claim after 48 years is held to be not tenable in the eyes of law.
12. It is true that the plaintiffs petitioners have not even bothered to get their names mutated in the revenue record nor have they enquired about any entry mutated in the names of the respondents in the SCA/7166/2011 6/6 JUDGMENT year 2004, as averred in the pleadings.
13. Although the Panchnama alone cannot be said to be decisive for the Court to grant any interim injunction, however, on the basis of the pleading of exchange of land, as the situation exists prima facie in the Panchnama and electricity line is passing through this land being Revenue Survey No.100/3 which is also going to another land of petitioners situated at Jethpada and when no objection is raised to the details of Panchnama, no harm is going to be caused in directing the maintenance of the status quo, at this stage, as the plaintiffs appear to have enjoyed this situation till the date and simultaneously directing the trial Court to expeditiously decide the suit so as to protect the interest of both the sides.
14. Resultantly, this petition is being allowed confirming the order of the trial Court being Regular Civil Suit No. 46 of 2010 dated 14.3.2011 of maintenance of status quo in respect of the suit land and trial Court is directed to expeditiously proceed with the suit as far as possible to complete and dispose of the same within 12 months from the date of receipt of this order.
(Ms.Sonia Gokani, J.) sudhir