This appeal from order is preferred against the judgment and order passed by learned Judge, Court No.22, City Civil Court, Ahmedabad dated 3.1.2012 below Exhs.6 and 7 in Civil Suit (CCC) No.1231 of 2007, whereby the notice of motion was dismissed. The present appellant-original plaintiff filed a Civil Suit (CCC) No.1231 of 2007 along with the notice of motion stating that the plaintiff is the sole owner of the plot no.3739 admeasuring 500 sq.mt situated at GIDC Phase 4 on the outskirts of vatva, Ahmedabad and that there is a shed admeasuring 20 feet x 80 feet towards the northern side of the suit property. That in the year 1999, the plaintiff and the defendants entered into an agreement and by way of this agreement, the shed was given on rent for one year to the defendants for the business of casting oil furnace. It is stated by the plaintiff that the plaintiff is also using the shed and there is a wall in the middle of the shed and there is a 4 feet iron shutter. It is averred that the defendants have no right to enter into the southern part of the shed which is in possession of the plaintiff. That the defendants are threatening the plaintiff that they will barge into the suit property by breaking open the shutter and shall throw away the machinery of the plaintiff. Therefore, he filed the suit along with the notice of motion restraining them from doing so. After hearing the learned advocates for the parties, learned trial Court dismissed the notice of motion of the appellant-original plaintiff, against which the present appeal is filed.
Heard learned advocates for the parties and perused the papers.
On perusing Exh.4/1 which is an agreement to sale which took place between M/s Technic Aids- partnership firm and the present appellant-original plaintiff Nitin Jayantilal Trivedi, it shows that plot no.3739 admeasuring 500 sq.mtrs. was purchased by the present appellant-plaintiff by the sale agreement dated 3.6.1994. On perusing Exh.4/3 which is an agreement of handling agency which took place between the present respondent-original defendant and the present appellant-original plaintiff dated 31.5.1999. As per this agreement, the present appellant-original plaintiff handed over 220 sq.yards land from plot no.3739 admeasuring 500 sq.mtrs. Mark.20/1 is the rent note which took place between the respondents- defendants and the plaintiff on 1.4.1998 for 250 sq.yards. All these three documents through which the present defendant no.1 is put in possession clearly show that half of the portion of plot no.3739 i.e. 250 sq.yards or 220 sq.yards have been given to defendant no.1 and the remaining portion of plot no.3739 was in the possession of the present appellant-plaintiff. No doubt the defendant has produced number of documents in reference to the sales tax, income tax, electricity bill and receipt of payment made by the defendant to the plaintiff in which the address of the business place of defendant no.1 is shown as plot no.3739. When the defendant no.1 is in possession of part of the land of plot no.3739 and running the business in this part of the land, then certainly address of the defendant no.1 will be the same and so no doubt the defendant is in possession of the plot no.3739 but as per the above referred documents, he is in possession of half of the land of this plot. If we minutely go through these documents, then in all these documents, it is specifically stated that half of the land of plot no.3739 is handed over to the defendant no.1 and defendant no.1 is in possession of the plot.
The present appellant-plaintiff is also running business in the name of M/s V.N.Industries in the said remaining part of the plot and documents are also produced to this effect before the trial Court. The trial Court has not considered the same and only relying upon the documents produced by defendant no.1, came to the conclusion that the defendant has paid Rs.7,30,000/- to the appellant-plaintiff and he is in absolute possession of the plot no.3739.
On going through the documents at Exh.4/1, 4/3 and Mark 20/1, it is crystal clear that only part of the land of plot no.3739 has been handed over to the defendant. So, in the opinion of this Court, the trial Court has committed error in not minutely going through the evidence which resulted into not properly appreciating the evidence.
In view of the above, this appeal deserves to be allowed and is accordingly allowed. The judgment and order passed by learned Judge, Court No.22, City Civil Court, Ahmedabad dated 3.1.2012 passed below Exhs.6 and 7 in Civil Suit (CCC) No.1231 of 2007 is hereby quashed and set aside. The notice of motion at Exhs.6 and 7 in Civil Suit (CCC) NO.1231 of 2007 is allowed to the extent that both the parties are directed to maintain status-quo in respect of the portion of the plot no.3739 which are in their respective possession till the final disposal of the suit.
In view of the order passed in the appeal, civil application does not survive and is disposed of accordingly.
( M.D.Shah, J ) srilatha