Present petition is directed against the order dated 14/6/2010 passed by the learned First Appellate Court in Civil Misc. Appeal No.79 of 2009.
The learned First Appellate Court, by the impugned order dated 14/6/2010, has allowed the aforesaid Civil Misc. Appeal No.79/2009 by setting aside the order dated 20/7/2009 passed by the learned Trial Court in Regular Civil Suit No.283 of 2008.
By the said order dated 20/7/2009, the learned Trial Court allowed application (Exh.-5) filed by the original plaintiff seeking interim relief in the nature of direction against the original defendants to the effect that the original defendants may be restrained from disturbing the plaintiff's possession in respect of the suit property and directing the defendants to not to obstruct the plaintiff from cultivating the land and taking the yield. The said relief was granted in favour of the plaintiff by the learned Trial Court by the order dated 20/7/2009 passed below Exh.-5. Aggrieved by the said order, the original defendants preferred the aforesaid Civil Misc. Appeal no.79 of 2009 wherein the impugned order has been passed. Hence, the original plaintiff is before this Court.
Earlier, after hearing the parties order dated 3/9/2010 was passed wherein relevant factual aspects were recorded. For ready reference and to avoid repetition of the factual aspects the order dated 3/9/2010 is to be treated as part of present order.
The petitioners herein are the original plaintiff who filed the Regular Civil Suit No.283 of 2008. In the order dated 20/7/2009 passed by the learned Trial Court which was the subject matter of the appeal in which the impugned order has been passed, the plaintiff had claimed that he is the occupier of the suit property and in support of his claim he relied upon the revenue record particularly form-7/12 wherein according to his claim, his name was entered into as the owner/occupier of the suit property. The said order dated 20/7/2009 also records that the plaintiff has taken out revenue proceedings against the defendant wherein he has claimed that he is the tenant of the land in question and that the suit property/land in question is in his actual possession, he being the tenant of the property.
It is not in dispute that the revenue proceedings, after the order came to be passed by the competent authority, are pending before the appellate/revisional authority. It is also not in dispute that the order passed by the competent authority in the subject revenue proceedings is in favour of the defendant.
The learned Trial Court proceeded on the premise that the plaintiff had, by virtue of the documents, particularly the form-7/12 established that he was in actual possession of the land in question. The learned Trial Court, therefore, came to the conclusion that the plaintiff did make out good prima facie case and the Court found balance of convenience in favour of the plaintiff. On the strength of such conclusion the learned Trial Court granted interim relief and allowed application Exh.-5. Therefore the defendant carried the matter in appeal before the learned First Appellate Court. By the impugned order the learned first appellate Court allowed the appeal.
On perusal of the order of the learned First Appellate Court i.e. the impugned order dated 14/6/2010, it emerges that the learned First Appellate Court has taken into account the form No.6 and on basis of the said form-6 it is noticed that the original defendant was agriculturist having agriculture land in his ownership and that therefore the finding of the learned Trial Court that the defendant is not agriculturist and consequently, the impugned transaction was illegal, was unjustified.
During the hearing of present petition on earlier occasions the defendant relied upon the order passed by Mamlatdar ALT whereby the said competent authority had declined to grant any interim relief in favour of present petitioners.
The learned counsel for the respondent herein i.e. original defendant heavily relied upon the statement of M/s.Chaturbhai, Somabhai and Radhaji so as to assert that the so called tenancy was relinquished by the tenant way back in year 1961.
This Court had, so as to afford opportunity to the petitioners, granted time and adjourned the hearing of the petition so as to enable the petitioners to place on record any other material which would controvert or dislodge the said statement of M/s. Chaturbhai, Somabhai and Radhaji.
However, despite the said opportunity the petitioners have not been able to place on record any cogent material at this stage which would controvert or dislodge the statements of M/s. Chaturbhai, Somabhai and Radhaji. Of course, some documents are placed on record but it does not dislodge the other material including the said statements. Furthermore, having regard to the conclusions recorded by the learned First Appellate Court, coupled with the order dated 20/11/2009 passed by the Mamlatdar ALT in Tenancy Case No.33 of 2008 filed by present petitioners under Section-17(B) of the Tenancy Act, whereby the competent authority has rejected the injunction application preferred by present petitioners. It is, inter alia, held therein that the petitioner failed before the authority to establish the case as tenant, hence the request for interim relief has been declined. It emerges that during the hearing of present petition, the petitioner has failed to show any material which could demonstrate and establish, even prima facie, that the findings by the learned first appellate court are perverse or that the Court has committed any error of law or jurisdiction.
Learned advocate Mr. Rai appearing for the petitioners has failed to successfully assail the finding recorded by the learned First Appellate court in para-13 of the impugned order dated 14/6/2010 and has failed to point out any material which would controvert the statements made by the aforesaid M/s.Chaturbhai, Somabhai and Radhaji and the findings recorded by the authority in light of said statements.
In view of the above, and upon examining the statements made by the said three persons declaring that the tenancy was relinquished as back as in 1961, I do not find any error in the impugned order passed by the learned First Appellate Court. The petition fails and therefore the same is rejected.
However, in view of the facts and circumstances of the case, the learned Trial Court is requested to expedite the hearing of the suit and make all attempts to hear and decide the suit finally as expeditiously as possible and preferably within a period of eighteen months. It is also clarified that the learned Trial Court shall hear and decide the same independently on its own merits and on the basis of the evidence which may be produced on record by the contesting parties without being influenced by the order passed by the learned First Appellate Court and/or present order. So far as the orders passed by the Revenue Authority are concerned, the same will be considered by the learned Trial Court in accordance with law and subject to its probative value.
(K.M.THAKER, J.) (ila) Top