1.0 The appellants original defendant nos. 4 to 6 in Special Civil Suit No. 308 of 2003 are before this Court being aggrieved by order dated 11th March 2010 passed by the learned Principal Senior Civil Judge, Surat, whereby the learned Judge allowed the injunction application and granted injunction as prayed for in Para 4(A) against defendant nos. 4 to 6 till the final disposal of the suit.
2.0 Heard learned senior advocate Mr. SI Nanavati with Ms. Anuja Nanavati for the appellants. The learned senior advocate for the appellants vehemently submitted that the learned Judge has committed an error in allowing the injunction application and granting injunction as prayed for in Para 4(A). He invited attention of the Court to the contents of Para 4(A), which are at Page Z/23-24. The learned senior advocate submitted that by granting relief as prayed for in Para 4(A), practically, the entire suit stands allowed. In support of his submission, he also submitted that the learned Judge has observed in Para 12, which reads as under:
According to foregoing discussion, the plaintiffs have right, title and interest in the suit property... (emphasis supplied) 2.1 The learned senior advocate for the appellants submitted that the learned Judge has already decided the suit in favour of the plaintiffs when he has recorded finding to the effect that, 'the plaintiffs have right, title and interest in the suit property'.
2.2 The learned senior advocate for the appellants invited attention of the Court to two Satakhats and submitted that in view of the Possession Receipts, the possession is with the present appellants original defendant nos. 4 to 6. He submitted that the suit is of the year 2003 and till recent past, the plaintiffs did not bother to get exh. 5 heard.
2.3 After the matter was heard in the morning, the learned senior advocate for the appellants was granted time to inquire as to how come in a suit of 2003, exh. 5 is heard and decided by an order dated 11th March 2010. In the second half when the matter is taken up for consideration, the learned senior advocate for the appellants submitted that there was an order passed below exhs. 88, 88/A and 23 directing the plaintiffs to pay the Court Fees. That order was challenged before this Court in Special Civil Application No. 1796 of 2005, which came to be disposed of by a judgment and order dated 30th April 2008 and it is thereafter, that the plaintiffs have got the exh. 5 heard, wherein, in the impugned order is passed.
3.0 The learned advocate Mr. Manan A. Shah appearing for opponent nos. 1 and 2 original plaintiffs invited attention of the Court to various documents from the paper book, which he made available to the Court. He strenuously submitted that the present appellants have not come forward with the plea of 'Satakhat' on the first available opportunity and they have not mentioned about the same in the first Written Statement, which was filed on 3rd January 2004. Not only that, along with that, an affidavit was filed by Maganbhai Ramjibhai appellant no. 2 herein, which is also of the same date i.e. 3rd January 2004, wherein also, there is no mention about the 'Satakhat'. The learned advocate for the opponent nos. 1 and 2 also submitted that there was an application filed for the counter claim dated 12th January 2004, wherein also there is no details set out of the 'Satakhat', which are referred to and relied upon by the present appellants. He submitted that, that application was dismissed on 9th January 2009. The learned advocate Mr. Shah further submitted that, thereafter, an Additional Written Statement was filed on 12th January 2004, in that Written Statement also, the story of Satakhat is not mentioned.
3.1 The learned advocate Mr. Shah also submitted that similarly, in Additional Written Statement exh. 46, which was filed on 10th February 2004 by the heirs of defendant no. 4, there is no mention about the 'Satakhat'. He submitted that the fact that no details are set out about the 'Satakhat' and a very cursory reference is made in the first Written Statement, the affidavit and the counter claim application, shows that the present appellants were not sure of basing their case on the 'Satakhat' on which, they are now placing heavy reliance.
3.2 The learned advocate Mr. Shah for opponent nos. 1 and 2 invited attention of the Court to exh. 72 wherein, the documents, which are 91 in numbers, are produced, showing the Payment of the Land Revenue, the Education Cess for the years 1981 to 2004. Besides that, the learned advocate Mr. Shah invited attention of the Court to the 'Khedut Pothi' and submitted that the same should be treated as the conclusive proof of the opponent nos. 1 and 2 being in possession of the land in question.
4.0 So far as the possession part is concerned, in light of the documents produced at exh. 72, i.e. the Receipts of Payment of Land Revenue, the Education Cess and the 'Khedut Pothi', this Court feels no hesitation in endorsing the findings recorded by the learned Judge on the aspect of 'possession'. That being so, the question remains as to whether the language employed by the learned Judge in Para 12 and granting of relief in terms of Para 4(A) is required to be suitably modified .
4.1 This Court is of the opinion that only because the learned Judge has said that, '...the plaintiffs have right, title and interest in the suit property...' it cannot be said that the learned Judge has decided about the right, title and interest of the plaintiffs finally. Otherwise also, it is settled law that observations made in any 'interim' order are tentative in nature and as and when the suit is heard and decided, it has to be heard and decided without being influenced by such observations.
4.2 So far as the grant of relief in terms of Para 4(A) is concerned, only because it is prayed that the present appellants be restrained from getting the land converted into old tenure land from new tenure land, it cannot be said that the plaintiffs have admitted, either the possession or any other part of the case of the present appellants and therefore, this Court finds that no interference is required with the order passed by the learned Judge.
5.0 The request made by the learned senior advocate for the appellants that it being a suit of 2003, the same be expedited and in the meantime, even the plaintiffs be put to term that they will not deal with the property in any manner so as to see that the rights of the appellants are further prejudiced.
5.1 The request is found reasonable. The same is allowed. The Court below is directed to give priority to the hearing of the suit being Special Civil Suit No. 308 of 2003 and decide the same as expeditiously as possible, preferably within one (01) year from today.
5.2 The parties are directed to maintain 'status quo' meaning thereby, the plaintiffs, who are held to be in possession by the learned Judge and so also by this Court, will continue to enjoy the possession but at the same time, they are directed not to deal with the property in any manner so as to prejudice the rights of the appellants 6.0 With above directions, this Appeal from Order is accordingly disposed of.
[ Ravi R. Tripathi, J. ] hiren Top