1. In this petition under Article 227 of the Constitution of India challenge is made to the order of the learned appellate Court passed in Miscellaneous Civil Application No.26 of 2011 on 17.9.2011. The petitioner is the original plaintiff having the land bearing Survey No.1222 at Dhangadhra on the main highway. 0.24 Gunthas out of the total amount was required by the Government for road widening. It is the say of the petitioner that Hansrajbhai Valjibhai and Diwaliben Nathlal purchased the land admeasuring 6.15 gunthas in the year 2002-03 by a registered document out of which 0.24 gunthas was acquired by the Government. The petitioner purchased 5.31 gunthas by a registered sale deed No.1378 dated 11.6.2002 and out of the said land 2.14 gunthas of land was going under the submergence. The Revenue appeal was preferred by the original occupants Hansrajbhai Valjibhai and Diwaliben Nathlal before the Collector and subsequently before the Gujarat Revenue Tribunal. Since the petitioner purchased the land in the year 2002 of 5.31 gunthas , she was impleaded as a party before the GRT.
2. The respondents having the land bearing Survey No.1557 adjacent to the land of the petitioner are alleged to have encroached upon the land, which is in possession of the petitioner. Therefore, Regular Civil Suit No.120 of 2011 was preferred where the order of status quo was granted on 17.9.2011. Thereafter, the said order was vacated after hearing both the sides and the petitioner preferred Miscellaneous Civil Application No.26 of 2011 before the District Court, Dhrangadhra which confirmed the order of the trial Court rejecting the application for injunction.
3. Being aggrieved by the said order, by various grounds mentioned, present application is preferred with a prayer to quash and set aside the orders of both the authorities seeking further direction against the respondent by not allowing them entry in the land bearing Survey No.1222.
4. Learned advocate Mr. Mamata Vyas fervently argued for and on behalf of the petitioner and urged as to how the respondent is attempting to encroach upon the land although he has no right to so do it. She, therefore, urged that the protection will be inevitable otherwise the respondents would take advantage of the situation and will non-suit the petitioner. She emphasized that the respondents admittedly are owning Survey No.1557 which is adjacent to that of the petitioner, who has no relation with Revenue Survey No.1222. Therefore, it in no manner can disturb the possession of the present petitioner. Appearing for the Caveator Mr. Hriday Buch at the outset, admitted that the respondent is concerned with Survey No.1557 and as far as the suit land belonging to the present petitioner bearing 2.15 gunthas, no disturbance is to be caused. However, he forcefully argued that as noted by the trial Court, the plaintiff has failed to prove ownership of 6.15 gunthas. According to him, on the other side of the road, the disputed land of 2.14 gunthas is situated for which the proceedings before the GRT is pending. Both the Courts have consecutively when decided the issue against the present petitioner, only in exceptional cases, this Court should interfere by invoking its jurisdiction under Article 227 of the Constitution of India.
5. If one examines the order of trial Court, it exhaustively noted that the petitioner purchased land being Survey No.1222 from the original owner and this registered sale deed speaks of measurement of 3.16 gunthas. The revenue record was indicative of 1 acre 65 gunthas in Survey No.1222 and 2 acres and 25 gunthas in Survey No.1222. Thus, the total area of land for which the petitioner could establish its ownership was of 3.16 gunthas. On affidavit petitioner had stated 6.15 gunthas, which the Court disbelieved. It reiteratively stated that unless prima facie the petitioner establishes that it has purchased 6 acres and 15 gunthas of the land in Survey No.1222, it would not be possible to protect such a right. A map of the Court Commissioner, Panchnama, etc. also have been depended upon by the Court and resultantly it was of the opinion that no prima facie case has been established. When challenged before the appellate forum in Civil Miscellaneous Application No.26 of 2011,it concurred with the findings of the trial Court and confirmed the said order. The Appellate Court also believed that the true facts were not revealed by the petitioner and at no point of time, it had purchased 6 acres and 15 gunthas. It exhaustively dealt with in its paragraphs 6 and 9, the case of the plaintiff petitioner.
Before this Court also learned advocate sought to depend on the proceedings before GRT to establish its prima facie case. Impleading petitioner as party cannot ipso facto determine his rights qua the suit land prima facie. Although when insisted to point out as to how 6 acres and 15 gunthas, the petitioner owns, it has failed miserably on that aspect. Petitioner has also in no manner able to indicate any jurisdictional error or perversity or material illegality in the order impugned. On the certainty facts of this case lead this Court to reproduce profitably the judgment of the Apex Court decided in Civil Appeal No.5897 of 2010, wherein it has held as under:-
“78. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases High Courts, in a routine manner, entertain petition under Article 227 over such disputes and such petitions are treated as writ petitions.
79. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority.
80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed.In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
81. As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice.
82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly.
83. For the reasons aforesaid, it is held that the High Court committed an error in entertaining the writ petition in a dispute between landlord and tenant and where the only respondent is a private landlord. The course adopted by the High Court cannot be approved. Of course, High Court's order of non- interference in view of concurrent findings of facts is unexceptionable. Consequently, the appeal is dismissed. However, there shall be no order as to costs.”
6. Resultantly, no interference is at all required, keeping in mind the findings of the Apex Court as far as the jurisdiction of this Court under Article 227 is concerned. There being neither jurisdictional error nor any miscarriage of justice, petition deserves dismissal and stands disposed of accordingly.
sudhir ( Ms. Sonia Gokani, J. )