Gujarat High Court
Dudhiben Ichharam Govanbhai Patel Wd/O ... vs Heerabhai Govanbhai Patel & 23 on 29 June, 2016
Author: M.R. Shah
Bench: M.R. Shah, A.S. Supehia
C/FA/841/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 841 of 2016
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DUDHIBEN ICHHARAM GOVANBHAI PATEL WD/O ICHHARAM GOVAN
BHAI PATEL & 1....Appellant(s)
Versus
HEERABHAI GOVANBHAI PATEL & 231....Defendant(s)
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Appearance:
MS SANGEETA PAHWA for THAKKAR AND PAHWA ADVOCATES,
ADVOCATE for the Appellant(s) No. 1 - 2
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CORAM:HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 29/06/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Feeling aggrieved and dissatisfied with the impugned judgement and decree passed by the learned Additional Senior Civil Judge, Surat in Special Civil Suit No. 58 of 1998, by which the learned Judge has dismissed the suit preferred by the original plaintiffs, the original plaintiffs have preferred the present First Appeal.
2.00. Facts leading to the present First Appeal, which lead to filing of the present First Appeal and case of the appellants herein - original plaintiffs are as under :
Page 1 of 9HC-NIC Page 1 of 9 Created On Tue Jul 05 00:50:46 IST 2016 C/FA/841/2016 ORDER 2.01. That the appellants herein - original plaintiffs claim to be legal heirs of one Ichharam Govanbhai Patel. That the said Ichharam Govanbhai Patel along with his brothers -
defendant Nos.1 and 7 had inherited immovable properties situated at Kapodra, Surat bearing Survey No.26 admeasuring approximately 68,088 sq.mtrs. from their predecessor, Govanbhai Patel.
2.02. That in the year 1960, co-owners sought partition of the immovable property by metes and bounds and thus, the matter was referred to Arbitration. That the learned arbitrator declared award on 18/11/1960. Accordingly, Mutation entry No.260 was made in the year 1965, and the same was certified in the year 1967. Accordingly, Ichharam Govanbhai Patel became the absolute owner of the northern portion of the immovable property, admeasuring approximately 22,662 sq.mtrs.
2.03. That the said Ichharam Govanbhai Patel entered into an Agreement to sell his portion to one Madhubhai Patel and therefore, he executed an irrecoverable power of attorney in favour of said Madhubhai Patel dated 28/8/1989. Accordingly, other two portions of the immovable properties were allotted to the original defendant Nos.1 and 7.
2.04. That the plaintiffs' predecessor in title applied to the Gram Panchayat seeking development permission of his immovable property and the same was granted vide order dated 12/1/1974. Accordingly, construction activity was carried out on his portion of the immovable property.
Page 2 of 9HC-NIC Page 2 of 9 Created On Tue Jul 05 00:50:46 IST 2016 C/FA/841/2016 ORDER 2.05. It appears that in the year 1975, the aforesaid immovable property was included in the town planning area and Town Planning Scheme No.16 was drawn. According to the plaintiffs, in the Scheme the immovable property was shown as one entire plot and no division as per Mutation Entry No.267 or items corresponding maps in accordance with the partition were shown. According to the plaintiffs, even in the Re- distribution Statement, the names of all co-owners - Ichharam and original defendant Nos.1 and 7 were shown in a single sheet and no separate sheets were drawn for individual portion holder. According to the plaintiffs, the area of the immovable property was reduced to 47,765 sq.mtrs. and the remaining portion i.e. 20,323 sq.mtrs. was acquired by the State Government under compulsory deduction for implementation of the Town Planning Scheme.
2.06. According to the plaintiffs, thereafter and as the disputed property was shown as single undivided unit jointly owned by Ichharam and original defendant Nos.1 and 7, the plaintiffs made representation to the Town Planning Officer by providing a duly signed map dated 4/4/1988 prepared by the DILR, Surat, Hissa Form No.4 and Form No.11/A making share and entries final dated 25/8/1988. According to the plaintiffs and despite the above, the Town Planning Officer finalized the Town Planning Scheme without specifying which portion was acquired and which portion of the land had gone in favour of each co-owner. Therefore, the plaintiffs submitted objections on 13/6/1988 and 28/3/1988 pointing out the irregularities with respect to the acquisition of the acquired portion of the immovable properties in the Scheme. However, their Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Jul 05 00:50:46 IST 2016 C/FA/841/2016 ORDER objections were not considered and therefore, the plaintiffs preferred Special Civil Application No. 3481 of 1991 before this Court which came to be disposed of by this Court vide order dated 17/1/1991 directing the plaintiffs to make representation to the State Government. That the objections raised by the original plaintiffs came to be rejected and the Town Planning Scheme came to be sanctioned by Notification dated 17/9/1994.
2.07. That thereafter, the plaintiffs preferred another Special Civil Application No. 12014 of 1994 which came to be dismissed by the learned Single Judge, against which Letters Patent Appeal No. 904 of 1996 was preferred, which also came to be dismissed. The order passed by this Court in Special Civil Application No. 12014 of 1994 and Letters Patent Appeal No. 904 of 1996 came to be confirmed by the Hon'ble Supreme Court and the Hon'ble Supreme Court dismissed SLP (C) No.21364-21365 of 1996.
2.08. That thereafter, the plaintiffs preferred present suit being Special Civil Suit No. 58 of 1998 seeking partition of Final Plot No. 29 admeasuring 47,749 sq.mtrs. It was in the alternative prayed that the original defendant Nos.11 to 231 have no right, title and/or interest in the suit land through original defendant Nos.1 to 10. It was also prayed in the alternative that if the original defendant Nos.1 to 10 have received any consideration from the original defendant Nos.11 to 231, in that case to pay 1/3rd share to the plaintiffs.
2.09. It was the case on behalf of the original plaintiffs that after the partition in the year 1960 as per the award Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Jul 05 00:50:46 IST 2016 C/FA/841/2016 ORDER declared by the arbitrator, when the land in question was included in the Town Planning Scheme and prepared final Town Planning Scheme, the town planning authority had not recognized the portion and has allotted a common one Final Plot in the joint name of the co-owners i.e. original plaintiff and the defendant Nos.1 and 7. It was therefore, submitted that as the said land has not been partitioned and the same has been accepted by this Court while passing the order in Special Civil Application No. 12014 of 1994, confirmed upto the Hon'ble Supreme Court. It was submitted that therefore, the Final Plot No. 29 admeasuring 47,749 sq.mtrs. be partitioned amongst the plaintiff and defendant Nos.1 and 7.
2.10. That on appreciation of evidence and considering the fact that earlier in the year 1960, there was already partition as per the award declared by the arbitrator and the said partition was already implemented and acted upon by the parties, there is no question of again partitioning the land. Therefore, by the impugned judgement and decree the learned trial court has dismissed the suit.
2.11. Feeling aggrieved and dissatisfied with the impugned judgement and decree passed by the learned trial court in dismissing the suit, the original plaintiffs have preferred the present First Appeal.
3.00. Ms.Pahwa, learned advocate appearing on behalf of the appellants herein - original plaintiffs has vehemently submitted that the learned trial court has materially erred in dismissing the suit and not accepting the case on behalf of the plaintiffs that subsequently when the land in question was Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Jul 05 00:50:46 IST 2016 C/FA/841/2016 ORDER included in the Town Planning Scheme and while allotting Final Plot No. 29 admeasuring 47,749 sq.mtrs. of land, the town planning authority has not accepted the partition and has allotted a common Final Plot and even in the Re-distribution Statement, the names of all co-owners - original plaintiffs, defendant Nos.1 and 7 have been mentioned. It is submitted that when the objections were raised by the appellants herein
- original plaintiffs before the appropriate town planning authority, pointing out the partition and despite the same, a common joint one Final Plot was allotted and even the same came to be accepted by this Court in Special Civil Application, which came to be confirmed upto the Hon'ble Supreme Court and therefore, the learned trial court ought to have partitioned the land bearing Final Plot No. 29 admeasuring 47,749 sq.mtrs. amongst the original plaintiffs, original defendant Nos.1 and 7.
3.01. Ms.Pahwa, learned advocate appearing on behalf of the appellants herein - original plaintiffs has heavily relied upon section 67 of the Town Planning Act.
Making above submissions, it is requested to admit / allow the present appeal.
No other submissions have been made.
4.00. Heard the learned advocates appearing on behalf of the respective appellant at length. We have considered the relevant documents placed by the learned advocate appearing on behalf of the appellant, for the perusal of the court.
Page 6 of 9HC-NIC Page 6 of 9 Created On Tue Jul 05 00:50:46 IST 2016 C/FA/841/2016 ORDER 4.01. At the outset, it is required to be noted that by instituting the present suit, the original plaintiffs sought partition of the Final Plot No. 29 admeasuring 47,749 sq.mtrs. solely and mainly on the ground that the town planning authority while allotting Final Plot has not accepted the partition. However, it is required to be noted and it is not in dispute that the father of the plaintiffs - Ichharam Govanbhai Patel and his brothers, original defendant Nos.1 and 7 inherited immovable properties situated at Kapodra, Surat bearing Survey No.26 admeasuring approximately 68,088 sq.mtrs. from their predecessor, Govanbhai Patel. It is also not in dispute that in the year 1960, co-owners sought partition of the aforesaid immovable property by metes and bounds and the matter was referred to Arbitration and the learned arbitrator declared award on 18/11/1960. That, Ichharam Govanbhai Patel - father of the plaintiffs became the absolute owner of the northern portion of the aforesaid property, admeasuring approximately 22,662 sq.mtrs. That other two portion of the aforesaid land had gone in the share of the original defendant Nos.1 and 7. It is not in dispute that then said arbitral award was accepted and acted upon by the parties. Not only that, even the father of the plaintiffs, Ichharam Govanbhai Patel entered into an Agreement to sell his portion to one another person and he also executed irrecoverable power of attorney, however, subsequently the land in question was included in the Town Planning Scheme and in lieu of original Survey No.26 admeasuring 68,088 sq.mtrs., the town plaining authority allotted Final Plot No. 29 admeasuring 47,749 sq.mtrs. and the remaining portion had gone under compulsory deduction for implementation of the Scheme. It is required to be noted that in the Re-distribution Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Jul 05 00:50:46 IST 2016 C/FA/841/2016 ORDER Statement, though the name of all the co-owners are mentioned, it is specifically mentioned that their rights will be as per their share in the original plot. Therefore, as such it cannot be said that the town planning authority while allotting Final Plot did not accept the partition. Therefore, merely because Final Plot No. 29 admeasuring 47,749 sq.mtrs. was allotted in the joint name and/or in the Re-distribution Statement, names of all co-owners were mentioned, it cannot nullify the partition, which had taken place in the year 1960 as per the award declared by the learned arbitrator, which was in fact, accepted and acted upon by the respective parties.
Considering the aforesaid facts and circumstances, the learned trial court has rightly dismissed the suit by observing that once partition had taken place, there is no question of again partitioning the land. It appears that some of the portion which had gone in the share of the plaintiffs might have gone under compulsory deduction for implementation of the Town Planning Scheme and therefore, it prompted the plaintiffs to institute the suit, again claiming partition in the remaining area of the land admeasuring 47,765 sq.mtrs. of land from Final Plot No.29. On aforesaid ground, the plaintiffs cannot again seek partition in the land which was in fact already partitioned as per the award declared by the learned tribunal. In the facts and circumstances of the case, section 67 shall not be applicable at all. It is required to be noted that as such in the meantime, rights of the defendant Nos.11 to 231 have already come in existence.
Considering the aforesaid facts and circumstances of the case, we see no reason to interfere with the impugned Page 8 of 9 HC-NIC Page 8 of 9 Created On Tue Jul 05 00:50:46 IST 2016 C/FA/841/2016 ORDER judgement and decree passed by the learned trial court in dismissing the suit. Under the circumstances, present appeal deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(M.R.SHAH, J.) Sd/-
(A. S. SUPEHIA, J.) Rafik...
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