Petitioners are the original defendants who have approached this Court by way of filing this writ petition under Articles 14 & 227 of the Constitution of India, challenging the order dated 11th August 2008 passed by the learned Additional District Judge & Presiding Officer, Fast Track Court, Bhavnagar in Misc. Civil Appeal No. 35 of 2008. It would be necessary to briefly outline the facts of the present case - considering the long drawn litigations between the parties.
The petitioners' forefathers purchased land bearing Revenue Survey No. 253/2 of Mouje Village Vadla of Bhavnagar City admeasuring about 10A-28 Gunthas [hereinafter referred to as, "the suit land"] by a registered sale deed dated 15th December 1964. The said land belonged to the then ruler of Bhavnagar State Shri Krishna Kumar Sinhji who had gifted the same on 23rd July 1949 to Shri Dharamkumar Sinhji, which subsequently came to be purchased by Shri Virjibhai Motibhai Tejani & Balubhai Motibhai-forefathers of the petitioners by a registered sale-deed, as mentioned above. On 2nd March 1965, DILR was directed to state the correct measurement of the land.
It is the averment of the petitioner that parties to the sale deed transferred entire parcel of land irrespective of its measurement and the land has been transferred as per the four corners reflected in the Sale Deed with wire fencing. At no occasion before the Government and in Court proceedings, the ownership of the respondent qua the suit land was questioned by the predecessors of the present respondents-original plaintiffs. While submitting Form No. I under provision of Section 6 (1) of the Urban Land [Ceiling & Regulation] Act submitted on 12th August 1976 as also while obtaining Succession Certificate dated 18th October 1986 from the Civil Court, no question was raised concerning the suit land. When DILR carried out measurement, the land actually admeasured 10A-28G instead of 9A-34G. The said change was entered into Revenue records by way of an Entry No. 700 dated 3rd March 1965.
It is also the say of the petitioner that another land bearing Revenue Survey No. 253/1 was owned by the forefathers of respondent-Dharamkumar Sinhji and some such changes in the measurement was also carried out by common entry no. 700, therefore, it can be said that Shri Dharamkumar Sinhji was well aware of such changes which were made from 3rd March 1965.
On demise of Shri Dharamkumar Sinhji, ULC proceedings were accomplished on 8th October 1998 directing to take possession of the excess land from Revenue Survey No. 253/1 and since Application under Section 20 of the ULC Act was pending, final decision was to be taken pursuant to such exemption proceedings.
The Will of Shri Dharamkumar Sinhji was subject to scrutiny by the Court of learned Civil Judge, Bhavnagar since his succession certificate and letter of administration on the basis of such Will was to be obtained and the said land was never shown to be of the ownership of Shri Dharamkumar Sinhji.
The present respondent is the legal heir of Shri Dharamkumar Sinhji who executed the document power of attorney on 13th May 2002 in favour of one Satubha Kalyansinh Sarvaiya. This document makes a mention of transfer of land bearing Survey No. 253/2 to the forefathers of the petitioner and the measurement stated therein is of 9A-35G, and therefore, 34 gunthas of land is said to be more than that was transferred and hence an agreement to sale was executed in favour of Satubhai Kalyansinh Sarvaiya in respect of said 34 Gunthas of land. One Agreement to Sale also was executed in favour of Satubha Kalyansinh Sarvaiya on the very same day ie., 13th May 2002. However, it is lamented that after the petitioner obtained sanction from various authorities concerning the suit land and started construction work, only with a view to hamper this progress and to extort money, a suit has been filed by the respondent being Regular Civil Suit No. 40 of 2008 in the Court of learned Principal Sr. Civil Judge, Bhavnagar for declaration and permanent injunction where application for interim injunction was also preferred. In the said suit filed on 25th January 2008, no ad interim injunction was granted. However, after hearing both the sides on 10th March 2008, injunction application was allowed in favour of the respondent. To enable the petitioner to approach the appellate forum, the order granting injunction was stayed, and accordingly, the petitioner filed Misc. Civil Appeal No. 35 of 2008 before the District Court, Bhavnagar.
Initially, the Appellate Court stayed the order of the trial Court and one more application was moved by the respondent herein vide Exh. 30 inter alia praying to take appropriate steps against the petitioners on the ground that it continued the work of construction despite specific directions of the Court. In a joint order passed below Exh. 5 & 13 dated 2nd April 2008, the learned Judge allowed application for injunction and directed disposal of the appeal within a period of thirty days and further rejected application submitted by the respondent for taking action against the petitioners.
Aggrieved by such order dated 2nd April 2008, Special Civil Application No. 6041 of 2008 was preferred where this Court [Coram : M.R Shah, J.] vide its Order dated 8th July 2008 directed appellate Court to decide and dispose of aforementioned Misc. Civil Appeal No. 35 of 2008 on or before 11th August 2008 and in the meantime, directed parties to maintain status quo.
The learned District Judge, after hearing the matter, vide its Order dated 11th August 2008 partly allowed the appeal and directed both the parties to maintain status quo in respect of the suit land till the final disposal of the Suit.
Challenging the impugned order of status quo directed against both the parties, the present petitioners-original Defendants have approached this Court presenting various grounds of challenge in this writ petition.
It is the say of the learned advocate Mr. Tolia appearing for the petitioners that an attempt on the part of respondent is only to abuse the process of law blatantly. He urged that it is a well settled position that in a matter like this, what is important is the boundaries of the suit land and not the area. It is further pointed out by the learned advocate that initially when the petitioners approached this Court, notice was issued to the otherside and after the respondent entered appearance, interim relief in terms of para 8
(b) is granted in favour of the petitioners on 4th March 2010. Thereafter, on 10th May 2010, by a detailed order the Court confirmed grant of interim relief till final disposal of Special Civil Application and directed the same to be posted for final hearing on 15th June 2010.
This was challenged by the original-plaintiff-respondent before the Apex Court in SLP (Civil) No. 16930 of 2010 and the Apex Court by its order dated 15th June 2011 stayed the operation of order of this Court dated 10th May 2010. And thereafter on 19th August 2011, passed the following order :-
"This petition is directed against Order dated 10.05.2010 passed by the learned Single Judge of the Gujarat High Court in S.C.A. No. 11915 of 2008.
We have heard learned counsel for the parties for some time and perused the record.
In our view, ends of justice will be served by requesting the High Court to make an endeavour to finally dispose of the Special Civil Application as early as possible but latest within two months from the date of presentation/receipt of this order without being influenced by various interim orders passed by different courts. Ordered accordingly.
Interim order dated 15.06.2010 passed in this petition shall remain operative till the disposal of the Special Civil Application by the High Court.
The Special Leave Petition is disposed of in the manner indicated above."
Thus, without entering into merits, Apex Court directed this Court to proceed with Special Civil Application finally and to dispose of the same latest within two months from the date of receipt of the order. The period of two months is long over. The petition could be finally heard only recently.
Heard learned advocates appearing for respective parties.
Learned advocate Shri Harshit Tolia appearing for the petitioners sought to place reliance upon the following decisions :-
[1] Shah Mahendrakumar Nagindas v. State of Gujarat, reported in 1983 GLH 394;
[2] Zaverbhai Kalanbhai Patel v. Chhotubhai Kanjibhai Patel, reported in 2010 (3) GCD 2201;
[3] Noorbibi vs. Ayeshabibi, reported in 19983 (3) GLR 2515;
[4] M/s.
Roy & Company & Anr. vs. Smt. Nani Bala Dey & Ors., reported in AIR 1979 Cal 50;
[5] The Palestine Kupat Am Bank Co-operative Society Limited v. Government of Palestine & Ors., reported in AIR (35) 1948 Privy Council 207;
[6] Subbayya Chakiliyan v. Maniam Muttiah, Goundan & Anr., reported in 1924 IC 414 (Madras);
[7] Veetrag Holdings Private Limited v. Gujarat Textile Corporation Limited, reported in 1996 (1) GLH 179.
Learned Sr. advocate Shri S.N Shelat appearing with learned advocate Shri Vimal Patel for the respondent-original plaintiff urged this Court that under Article 227 of the Constitution of India, the Court merely requires to look at the error of jurisdiction only. Appreciation is not within the realm of this Court in such kind of petitions.
He also sought to rely on the decisions of Apex Court rendered in case of Maharwal Khewaji Trust (Regd) Faridkot vs. Baldev Dass, reported in AIR 2005 SC 104. He further urged that right from the date of filing of the suit till the date, status quo has been maintained in respect of the suit property. In the submission of learned sr. advocate, it is urged that since the title would pass only in respect of the area mentioned in the registered deed and for the area not explicitly intended, no title could have been passed. He also pointed out that panchnama is reflective of the fact that it is an open land which requires protection till the dispute between the parties gets adjudicated by the competent authority.
During the course of hearing, learned advocate Shri Tolia filed an additional affidavit dated 20th February 2012 stating that for a short period when the order of status quo was lifted, after the grant of relief in terms of para 8(b) by this Court dated 4th March 2010 [Coram : Ravi R Tripathi, J.] and continued vide Order dated 10th May 2010, the respondent herein approached the Apex Court against such an order, out of 4047 sq.m of land 808.68 sq.m was sold to one Raisangbhai Pathubha Gohil by way of a registered sale deed dated 17th April 2010. As can be noted, initially interim relief came to be granted in terms of para 8 (b) on 4th March 2010 which was later confirmed on 10th May 2010 and that came to be challenged by the petitioner before the Apex Court.
At the time of entertaining Special Leave to Appeal on 15th June 2010, the interim order was passed by the Apex Court which was to remain in operative till the disposal of Special Civil Application by the High Court. Thus, for the duration starting from 4th March 2010 till 16th June 2010, when there was no stay in operation, this transfer has been effected. According to learned advocate Shri Tolia, affidavit in reply filed before the Apex Court at para 3.4 this fact has been reflected stating that there was since no impediment for sale or against the transfer, the same has been done. However, the same was not intimated to the concerned advocate. This affidavit is thus suggestive that the only dispute is since concerning 34 gunthas, which is equivalent to 3440.80 sq.m. With 808 sq.m having been sold off on 17th April 2010, there remains 2632.12 sq.m with the petitioners.
When this fact was reflected by way of an additional affidavit, learned senior advocate Shri Shelat urged that this is a bogus sale and an eye-wash only with a view to defeat the right of the respondent herein. Not only this should be viewed seriously but that further strengthens the case of the respondent that no fruits of decree would come in the hands of the respondent-plaintiff, if eventually she could succeed in proving her case before the trial Court, and therefore, this further vindicates her stand of continuing the order of status quo granted by the Court time and again and eventually also directed by the Apex Court in its order dated 15th June 2010.
Thus, on having heard learned advocates for the parties and on having closely examined the voluminous record produced for the said purpose, the order of status quo granted by the trial Court and confirmed by the appellate forum needs no interference for the reasons to be followed hereinafter.
The entire controversy in the present petition revolves around measurement of the suit land bearing Revenue Survey No. 253/2 of Village Vadla of Bhavnagar City. The actual extent of land is 10A-28G whereas the registered sale deed records the same as 9A-34G. This discrepancy to the extent of 34G requires a closure examination.
As noted hereinabove, in the year 1944, the erstwhile ruler of Bhavnagar State Shri Krushnakumar Sinhji gifted the subject land on 23rd July 1944 to Shri Dharamkumar Sinhji , who subsequently sold it to Virjibhai Motibhai Tejani & Balubhai Motibhai; the forefathers of the petitioners [original defendants] by way of registered sale deed dated 15th December 1964. In the said Sale Deed executed in the year 1964, this land is stated admittedly to be admeasuring 9A-34G.
It is not in dispute that after more than 4 decades of execution of the sale deed in the year 1964 by the forefathers of the respondent, she preferred the suit by specifically putting forth her case that it is the extent of land specified in the registered sale deed which must matter and not the land which is actually there at the site. The fact also needs to be noted that after the sale deed executed in the year 1964, the Revenue authorities since found an incorrect reflection of measurement of the suit land, the DILR carried out requisite proceedings to correct the measurement and the same was mentioned to be 10A-28G instead of 9A-34G. Yet another land which was held by Shri Dharmakumar Sinhji being Revenue Survey No. 253/1 where also similar discrepancy in the measurement was noted and necessary change was carried out. The fact is also not in dispute that in the year 1976 under the Urban Land [Ceiling & Regulation] Act, Shri Dharmakumar Sinhji filed requisite Form under sub-Section (1) of Section 6 of the Act and there is no reference of Revenue Survey No. 253/2. In the year 1998, the authorities under the ULC Act passed an order to take excess land from the land bearing Survey No. 253/1 only.
In the year 1986 also, after Shri Dharmakumar Sinhji's demise, while obtaining Letter of Administration in the year 1987, the schedule of properties was attached, however, Revenue Survey No. 253/2 was not included herein.
On having realized in the year 2002 that the land admesuring 34G was more in the sale effected of Revenue Survey No. 253/2 and on noting that the said land was required to be taken back by way of legal proceedings, agreement to sale was executed in favour of Shri Satubhai Kalyansinh Sarvaiya. This 34G of land was decided to be given to Satubhai Kalyansinh Sarvaiya through sale and an agreement to sale in favour of Satubhai was made on 13th May 2002.
As Regular Civil Suit No. 40 of 2008 is filed by the respondent against the petitioner on 25th January 2008, a serious question is raised with regard to the law of limitation. It is the say of the respondent that only when the construction work started on the suit land that the suit was preferred and where application for injunction was also moved.
As noted hereinabove, Court granted protection in favour of the respondent and when the present petitioner approached the appellate forum by way of Misc. Civil Appeal No. 35 of 2008, initially the order of the trialCourt was stayed. However, the Presiding Officer, Fast Track Court allowed Application Exh. 5 and rejected Application 13 seeking appropriate action against the present petitioner for having continued with the construction work. When this order was challenged in Special Civil Application No. 6041 of 2008, the learned Presiding Officer, Fast Track Court was directed to proceed expeditiously with Civil Misc. Appeal No. 35 of 2008 as early as possible but not later than 11th August 2008. The Court, while directing the appeal to be decided on its own merits without being influenced by the continuation of the order of status quo, modified the interim order passed by the learned Appellate Court to the said extent. When challenged before the Apex Court after the order of status quo was sustained/suspended for a period from 4th March 2010 till 15th June 2010, the petitioner herein has sold off part of the suit land admeasuring 34 gunthas. As also reflected hereinabove, right from the beginning when the trial Court, the first appellate court and thereafter this Court, while remanding the matter back to the Fast Track Court directing it to expeditiously hear Misc. Civil Appeal No. 35 of 2008, direction of maintenance of status quo prevailed; except for a brief period when the interim relief in terms of para 8 (b) staying the order of status quo which came to be granted by this Court from 4th March 2010 till the respondent approached the Apex Court against the order dated 10th May 2010. What also needs to be noted is the fact that even for a brief period when the order of status quo was not in operation, the petitioner herein chose to dispose of the property by transferring the same by way of a sale deed. It is though alleged by the respondent that the same is an eye-wash, the fact cannot be denied that taking advantage of such suspension and without waiting for the Court to adjudicate upon the dispute which was at large before it, this transfer of 808.68 sq.m of land has been done. A specific mention is required to be made that prior to detailed order passed on 10th May 2010 adjudicating the disputes between the parties, that such a transfer has been effected. It is not after the order of 10th May 2010 that the petitioner sought to transfer part of the suit. This surely can be said to be an attempt to over-reach the process of law knowing fully well that by such a transfer, an attempt was made to create multiplicity of proceedings.
All that the petitioner stated before the Apex Court in his Affidavit at para 3.4 is that he has transferred part of the land, which again appears to have been tucked somewhere in one of the paragraphs of affidavit, without bringing categorically that aspect to the notice of the Court. This also is one of the vital aspects for continuance of the status quo as other wise, not only there will be multiplicity of proceedings but the respondent herein would be non-suited in the even of total transfer of the suit land.
Pursuant to the directions by this Court [Coram:
M.R Shah, J.] dated 8th July 2008 in Special Civil Application No. 6041 of 2008, Civil Misc. Appeal No. 35 of 2008 came to be allowed partly by directing the parties to maintain status quo on 0-A & 34G till the final disposal of the suit. This order was passed on 11th August 2008 and the same is impugned in the present proceedings. As can be seen from this order, the learned District Judge & Presiding Officer, Fast Track Court elaborately noted the principles of grant of temporary injunction to hold that the said being discretionary relief, it is not for the appellate court to interfere in exercise of appellate jurisdiction, in the discretion of the trial Court by substituting its own discretion.
There was a particular reference of description of four sides in the sale deed and it was noted that on the Western side of the suit land, reference is made of a Public road leading to Bore Talav & Sthapanath Mahadev. However, there is no reference of land described as 0-Acre-34 Gunthas of Survey No. 253/2. After noting entry No. 700 of the Revenue record as also the proceedings before the ULC Competent Authority and sanction by the Municipal Commissioner for construction over the land purchased by the petitioner, etc., the Court recorded that what all the trial Court requires to look at is whether there is a triable issue and whether the trial Court committed any mistake in appreciating the evidence placed before it. The Court also noted that 0-Acre & 34 Gunthas since was never sold by way of a registered sale deed, it cannot be said that the said land was transferred by any legal document to the petitioner. Revenue entry no. 700 also though was put to its notice, it was of the opinion that unless the question regarding the total area is looked into and decided on appreciation of evidence, whether in fact, there was an intention to sale the entire property including 34 gunthas of land can be concluded on trial only. The Court further noted that the permission which was obtained on 3rd January 2008 to put up construction was not on the disputed land and unless there was No Objection Certificate granted by the Collector in respect of the said land, sanction of Municipal Commissioner would not have any effect. What further weighed with the Court was the fact that the petitioner is a builder and had this property been owned by it, he would not have waited for 42 years in selling the same. On various issues, which has been raised, the Court prima facie concluded that there was an increasing need to maintain status quo in respect of the suit land; keeping in mind all the three vital principles for grant of injunction under Order XXXXI Rule 1 & 2 CPC. Appellate Court also sought to rely upon some of the decisions for the said purpose. On revenue entry that had been made, the Court also felt that whether the procedure under Section 135 of the Land Revenue Code at the time of registering entry was in fact undertaken or not is also a matter of evidence requiring full fledged trial. This entire discussions led it to direct maintenance of status quo till the final disposal of the suit.
In wake of these details, decision of this Court in case of Shah Mahendrakumar Nagindas [Supra] empathetically relied upon by the learned advocate Shri Tolia requires consideration which says that if there is any conflict between the measurements and the boundaries, the boundaries must prevail. In other words, boundaries are decisive.
In case of Zaverbhai Kalanbhai Patel [Supra], this Court was adjudicating claim over land beyond the boundaries qua measurement. Considering the material on record, the Court upheld the version of the plaintiff that since it had claimed ownership of vada land, no infirmity in the judgment of the lower court was found. Reference was made in this decision to the case of Mahendrakumar Nagindas v. State, reported in 1983 2 GLR 1008, by holding that when there is a dispute between measurement and boundaries, the boundaries must prevail - meaning thereby that the plaintiff can only claim land within the boundaries even if it is in excess of measurement. The plaintiff cannot claim land beyond those boundaries. As the disputed land in the matter before the Court did not fall within four boundaries, it held that the plaintiff had no right on the said disputed land.
In case of Noorbibi v. Ayeshabibi [Supra] where also, the Court held that when there is discrepancy in dimension and boundaries, settled description by boundaries will prevail. When the Commission was issued, it was found that the dimension of the gifted house was much less than what has been shown on the basis of gift deed and the plaint was amended. The Court held that inference can safely be drawn and the findings given on the basis of eastern and western boundaries of the gifted house can be depended upon.
Calcutta High Court in case of M/s. Roy & Company & Anr. [Supra] also reiterated that view stating that in a conflict between area and boundaries, description of boundaries would prevail. It also says that the plaintiff needs to succeed only on the strength of its own case and not on the defendants' weakness.
Privy Council in case of Palestine Kupat Am, Bank Cooperative Society Limited [Supra] while interpreting the construction of the deed in respect of grant of land held that when there is conflict between statement of area and description by boundaries, description by boundaries is to be preferred.
Madras High Court in case of Subbayya Chakiliyan v. Maniam Muttiah Goudan & Anr. [Supra] held that ordinarily when a piece of land is sold with definite boundaries, unless it is very clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must prevail as against the measurements.
Since emphasis all along has been to rely on the boundaries and not on the measurements and the decisions are also to the effect that whenever any descripancy arises between the area and the boundaries, the description of boundaries would prevail.
For dealing with this issue at prima facie juncture, it would be necessary to refer to the registered sale deed dated 15th December 1964 executed in favour of the present petitioner by the father of the respondent. It describes the suit land as Revenue Survey No. 253/2 admeasuring 9 Acres 34 Gunthas, situated in the District-Sub-district Bhavnagar on the roads towards Rajkot from Palace Road to Bore Talav known as Krishna Baug. Description of property is as given in the Schedule and the schedule again mentions measurement as 9 Acre-34 Gunthas and the four boundaries shown there are -
East
- Land belonging to Hon'ble Queen Paheba Vijayaba;
West- Road leading to Bore Talav & SatpathMahadev;
North
-Bore Talav Canal and Kumudvadi field/plot;
South -
Fallow land.
Schedule also mentions that there is a fencing with various Trees standing on the land. Particular reference needs to be made on Western side where Bore Talav & Sthapnath Mahadev Temple. All along it has been emphasized by the petitioner that had there been land reserved to an extent of 34 Gunthas by the father of the present respondent, at the time of executing sale deed, the description on western boundary would have been completely different than what is mentioned in the Sale Deed. This 34 gunthas being the land of respondent's father, he either ought to have made a specific mention of his own land or at this stage; in absence thereof, the boundaries shall have to be given a weightage rather than measurements, as intent requires to be fathomed from this act.
As rightly held by both the Courts, this is a subject matter of the suit and unless this aspect is adjudicated upon, interpretation presented by the learned advocate cannot be acceded to as the only interpretation possible while reading the document.
Western boundary indicates a road leading to Bore Talav and Sthapnath Mahadev. Mere absence of any reference of his own land of 34 gunthas on western side, as rightly held by both the courts would not take away the right of the respondent, who is entitled to protection of the property till the issue is adjudicated. Again, as far as measurement in sale deed is concerned, there is absolutely no doubt that there was a clear intention of selling only 9A 34 gunthas. Not only at one place but at different places, there is a clear reference of such measurements, and therefore, the say of the learned senior advocate has a force that there would not arise any question of limitation to bring the suit against the present petitioner as the land was never intended to be transferred to the present petitioner. And therefore, question of limitation cannot preclude the respondent to get protection till all these issues get adjudicated appropriately. He sought to rely upon the decision of Privy Council in case of Andiappan Ambalam & Ors. vs. V.E Meyyappan Servai & Ors., reported in AIR (31) 1944 Privy Council 80 which says that for the purpose of finding out what land was included in the lease, the whole document must be considered and not merely "description of property" at the end thereof. Moreover, during the pendency of this suit, no purpose is likely to be served to permit the nature of the property to be changed as non grant of the status quo would facilitate transfer of the property which may eventually lead to multiplicity of the proceedings. The decision of the Hon'ble Supreme Court in case of Maharwal Khewaji Trust (Regd) Faridkot v. Baldev Dass [Supra] also substantiates this aspect.
Two Courts consecutively have held against the present petitioner, and therefore, in the present petition, firstly - the petitioner is required to point out the jurisdictional error for exercising powers under Art. 227 of the Constitution.
The Apex Court in Radhey Shyam v. Chhabi Nath, reported in 2009 (5) SCC 616 has held that the High Court should very sparingly exercise power of superintendence vested in it under Article 227 of the Constitution so as to keep the Tribunals and Courts within the bound of their authority, and the orders of both Civil & Criminal Courts under this Article need to be examined only in very exceptional cases when manifest miscarriage of justice is occasioned. Merely to correct the mistake of fact and of law, this should not be exercised. It reiterated the essential distinction in exercise of power between Article 226 & 227 as pointed out in case of Surya Devi Rai v. Ram Chander Rai & Ors., reported in 2003 (6) SCC
675. In Salini Shyam Shetty & Anr. v. Rajednra Shanker Patil, reported in 2010 AIR SCW 6387, the Apex Court discussed the powers under Article 227 of the High Courts. It would be relevant to reproduce some of the findings on the said issue, which reads thus -
"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 noninterference in view of concurrent findings of facts is unexceptionable. Consequently, the appeal is dismissed. However, there shall be no order as to costs."
Going by these principles, it can be said unfailingly that in the event of concurrent findings by two Courts, interference by this Court can only be exceptional circumstances. The petitioner herein could not make out such exceptional situation so as to warrant interference. On the contrary, as dilated hereinabove, an attempt is made by the petitioner to dispose of part of the suit land by staying the order of grant of status quo from this Court, which has strengthened the need for confirming the order of the learned Addl. District Judge & Presiding Officer, Fast Track Court, Bhavnagar in Misc. Civil Appeal No. 35 of 2008. Resultantly, this petition fails and is dismissed. Interim Order dated 4th March 2010 which was confirmed on 10th May 2010 stands vacated.
Petition stands disposed of in the above terms.
{Ms. Sonia Gokani, J.} Prakash* Top