Gujarat High Court
Vinubhai Mohanbhai Zalavadiya vs Dhulaji Somaji Thakor on 25 November, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/11890/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11890 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VINUBHAI MOHANBHAI ZALAVADIYA
Versus
DHULAJI SOMAJI THAKOR & 16 other(s)
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No.
10,11,12,13,14,15,16,17,6,7,8
MR JIGAR M PATEL(3841) for the Respondent(s) No. 9
MR.D K.PUJ(3836) for the Respondent(s) No. 1,2,4,5
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 25/11/2020
ORAL JUDGMENT
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C/SCA/11890/2020 JUDGMENT
1. RULE. Learned Advocate, Mr.D.K. Puj waives service of rule on behalf of the Respondent Nos.1 to 5 and learned Advocate, Mr. Jigar Patel waives service of rule on behalf of the Respondent No.9.
2. This petition is filed under Article-227 of the Constitution of India for challenging the order dated 22-09-2020 passed below application Exh-10 and order dated 08-09-2020 passed below Exh-7 passed by the 11th Additional Senior Civil Judge, Gandhinagar in the proceedings of Special Civil Suit No. 96 of 2020. The Order below Exh-7 was passed on an application filed by the respondent Nos. 1 to 5 who are original plaintiffs in the Civil Suit for the purpose of carrying out panchnama by appointing the Court Commissioner. Thereafter, the petitioner-original Defendant No.13 filed an application Exh-10 with the prayer to recall the order dated 08-09-2020 passed below Exh-7. An application, Exh-10 came to be rejected, consequently, the Order passed below Exh-7 was confirmed. It is this issue which is the subject matter of challenge in this petition.
3. Learned Advocate for the petitioner submitted that it is the case of the petitioner that though the respondent Nos. 1 to 3 had executed the Sale Deed dated 11-05-2017 in favour of the petitioner, they proceeded to execute the Second Sale Deed of the same land in favour of the respondent No.4 and 5 and therefore, the petitioner had instituted the Special Civil Suit No.212 of 2019 against the respondent Nos.1 to 5 seeking declaration of the ownership of the land and cancelling of subsequently executed Sale Deed dated 10-07-2019.
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4. In the Special Civil Suit No.212 of 2019 by the petitioner, it was also for an appointment of the Court Commissioner for preparation of the panchnama and drawing of map of the suit land, which came to be allowed and accordingly, the panchnama and map were drawn on 19-09-2019 in the presence of the respondent Nos.1, 2, 4 and 5. The panchnama therefore drawn on 19-09-2019 clearly records the position as it existed on the suit land and that the respondents at no point of time, have objected to carrying out of such panchnama or have challenged the order under which the panchnama was executed.
5. It is submitted that the dispute with regard to the suit land is also pending before the Revenue Authorities and the petitioner has filed Special Civil Application No. 10858 of 2020 challenging the order of SSRD dated 20-08-2020 rejected the Mutation entry posted in favour of the petitioner. It is submitted that though the Special Civil Application has been decided against the petitioner, however, the petitioner is contemplating to file an appeal against such order. It is submitted that nothing happened in the suit land right from the day of executing of panchnama on 19-09-2019. However, on 14-09-2020, the respondent Nos. 4 and 5 with a mob of nearly 50 to 100 persons tried to trespass into the suit land and tried to demolish the existing structures on the suit land, for which the petitioner was constrained to file a Criminal complaint with the Adalaj Police Station.
6. It is submitted that after the incident, the petitioner herein who is original Defendant No.13 in the Special Civil Suit No. 96 of 2020 received the summons of the suit on 17-09- Page 3 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020
C/SCA/11890/2020 JUDGMENT 2020 and on 18-09-2020, the petitioner was served with the notice of the Court Commissioner about the appointment of the Court Commissioner and carrying out of the panchnama of the suit land. According to the Notice by the Court Commissioner, the panchnama was to be drawn on 20-09-2020 and therefore, the petitioner filed an application, below Exh-10 on 18-09-2020 for recalling the order dated 07-09-2020. It is submitted that thereafter, the Civil Judge proceeded to hear the application below Exh- 10, came to be rejected. It is submitted that while rejecting, the Court has not committed an error in not considering the checkered history of the litigation with regards to the same land. The panchnama has been drawn and therefore, the order once again drawing the panchnama was in the nature of creating of evidence which is not necessary. It is also submitted that the chronology of events clearly indicates that the objective of the respondent Nos. 4 and 5 was to change the status of the suit land and by force and thereafter getting the same recorded by way of panchnama. This aspect is evident from the fact that the petitioner who is in possession of the suit land, had to filed the Criminal complaint for the assault made on 14-09-2020 at the suit land, whereby the damage was caused to the property and the occupants of the suit land. After having done that wanted to forcefully established the possession of the respondent Nos. 4 and 5 over the property and get the same recorded in the form of panchnama, which amounts to creating of evidence, which is not permissible.
7. It is submitted that the order passed below Exh-7 was ex-
parte order and therefore, when the petitioner filed an Page 4 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT application Exh-10 giving out the details, the Civil Judge ought to have appreciated that the respondent Nos. 4 and 5, who were defendants in the previous suit and were present at the time of carrying out of the panchnama, In the previous suit, this fact has not disclosed before the Court and therefore, the Court ought to have recalled the order passed below Exh-7.
8. Learned Advocate for the petitioner has relied upon the decision of the Apex Court in the case of Indian Bank V/s. M/s. Satyam Fibres (India) Pvt. Ltd., reported in (1996) 5 SCC 550, to contend that since the order of appointing the Court Commissioner was obtained by fraud and by misleading the trial Court was empowered to recall of such order.
9. Learned Advocate for the petitioner has also relied upon the decision of this Court in the case of Kanabhai Vishrambhai Gadhvi Versus Jenabai Ali Bhukea passed in Special Civil Application No. 8976 of 2007 dated 03/12/2010 to contend that the Court Commissioner should not be appointed for creating the evidence.
10. Learned Advocate for the petitioner has relied upon the decision in of this Court in the case of Palitana Sugar Mills Pvt. Ltd. v/s. Rasulkhan Aliyarkha Bloch passed in Special Civil Application No.10186 of 2012 dated 25/07/2013. Reliance is placed on Para-12.
11. The act on the part of the respondent Nos.4 and 5 is the act of suppression of material facts and amounts to playing fraud with the Court in getting the order passed below Exh- 7 passed in their favour. When the suppression and fraud Page 5 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT was brought on the record of the Court by an application Exh-10, the Civil Judge ought to have considered such aspect. However, the Civil Judge as who has not taken into consideration such aspect in correct perspective and without assigning any reasons, has rejected an application Exh-10.
12. It is submitted that the reasoning assigned by the Civil Judge is hyper technical by holding that an appeal is provided against the order of appointing the Court Commissioner and therefore, the order cannot be recalled. Moreover, the reasoning adopted with the previous panchnama executed in the different suit was almost one year back and therefore, as there is no provision to prevent the subsequent panchnama, therefore, there is no harm in drawing the another panchnama. It is submitted that such reasoning cannot be held to be sufficient more particularly when the respondent Nos. 3 and 4 have suppressed the material facts to their knowledge.
13. As against this, learned Senior Advocate, Mr. R. S. Sanjanwala for the respondent Nos.1 to 5 submitted that the order of the Civil Judge is justified. It is innocuous order just to record the existing position of the suit land. It is submitted that the drawing of the panchnama cannot be recalled and more so when the petitioner himself has alleged the incident of 14-09-2020 and probable change in the status due to such incident and therefore, drawing of panchnama was justified.
14. It is submitted that under Order-26 Rule-9 of the Code of Civil Procedure, which pertains to the issue of drawing the panchnama does not put any other restriction or even the Page 6 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT Notice to the parties to be heard before passing of such order. It is submitted that the only requirement under the law is that the intimation to the concerned parties about the details regarding carrying out of the panchnama like the name, time, etc.
15. It is submitted that the Court Commissioner's report is not the evidence in itself and cannot be treated as evidence, unless the same is put before the Court as per the procedure required during the course of trial. It is submitted that the Civil Court had adopted the same modus, while passing the order of appointing the Court Commissioner in the previous suits and thereafter, the panchnama was drawn, where the respondent Nos. 4 and 5 had also participated, which does not mean that the respondents have no objections. However, it is only at the stage when such document is to be during the course of trial that the objections cane be raised by cross examining the panch witnesses and/or the Court Commissioner. Therefore, there was no scope of challenge to the panchnama already drawn. It is submitted that the property in dispute since long, the respondent Nos.4 and 5 have filed an independent suit. The cause of action for filing such suit, is completely different from the cause of action in the previous suit and therefore, the respondent Nos.4 and 5 were justified in making an application Exh-7.
16. It is submitted that the land bearing Survey No. 663/1 admeasuring around 3136 sq. meters having Final Plot No. 124 in Draft Town Planning Scheme No. 9 was originally owned and occupied by Somaji Thakor and the land was vested with the State Government under the provisions of Page 7 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT the Tenancy Act in 1962 and the possession of the land was also taken over by the State Government in the year 1988. The name of the Collector, Gandhinagar was reflected in the Revenue Records in Village Form No. 7/12 since 1988. The Petitioner got the documents executed in his favour from the original farmers when the land was of the Government and the possession of the land was in the name of Collector Gandhinagar. The Registered Agreement to Sell was executed in favour of the Petitioner on 28.10.2004 and therein, it was specifically mentioned that the possession of the land would be handed over to the Petitioner at the time of execution of the sale deed. The Agreement dated 28-10-2004 was the last document executed between the parties.
17. It is submitted that the Gujarat Revenue Tribunal passed the Order quashing and setting aside the Orders passed in the year 1962 and 1988 vide its Order dated 10.5.2017. The Petitioner on the strength of the Power of Attorney, executed the Registered Sale Deed in his favour on very next day i.e. 11.5.2017, despite the fact that some of the donors of the Power of Attorney dated 30.3.2004 had died way back in the years 2007 and 2008 and still, their Power of Attorney was used by the Petitioner for executing the Registered Sale Deed in his favour and Petitioner wrongly sworn the Affidavit staying therein that the donors of the power were alive and residing at the place shown in cause title. On the date of execution of the Sale Deed on 11.5.2017, the name of the Collector, Gandhinagar was reflected in the Revenue Records and the possession of the land was also not handed over to the Petitioner nor to Page 8 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT the original owners pursuant to the order of the Gujarat Revenue Tribunal. As mentioned in the Agreement to Sell, which was the last document between the parties, dated 28.10.2004, the possession of the land was to be handed over to the Petitioner on the date of the execution of the Sale Deed. No such possession was ever handed over by the Original Owners to the Petitioner as the original owners were not even aware about the Order passed by the Gujarat Revenue Tribunal on 10.5.2017 and the execution of the Registered Sale Deed dated 11.5.2017. The Entry No. 16213 of the Sale Deed in favour of the Petitioner was also mutated for the first time in Revenue Records on 23.10.2018 i.e. after more than one and half years from the date of execution of the Sale Deed. The Petitioner was never in possession of the land in question and the Respondent Nos. 1 to 3 were having possession and after execution of the Sale Deed in favour of the Respondent Nos. 4 and 5, the Respondent Nos.4 and 5 were having possession.
18. It is submitted that the Entry No. 16212 was mutated in the Revenue Records, recording the transaction of the Petitioner on 23.10.2018, after more than one and half years of the Sale Deed dated 11.5.2017. The Mamlatdar initially certified the same and later when Mamlatdar came to know about the death of donors of Power of Attorney and the filing of the false affidavit by the Petitioner, wrote a letter dated 25.1.2019 to the Dy. Collector for reversing the Entry No. 16212. The Dy. Collector vide his Order reversed the Entry No. 16212. The Collector certified the Entry No.16212 and reversed the Order of the Dy. Collector. The SSRD Page 9 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT vide his Order dated 20.8.2020 cancelled the Entry No.16212 mutated in favour of the Petitioner observing the facts with regard to the Government Land and about the death of donors of Power of Attorney and filing of false affidavit by the Petitioner for execution of the Sale Deed and for mutation of Entry No.16212. The Order of the SSRD is challenged by the Petitioner by filing Special Civil Application No. 10858 of 2020 and the matter was heard on 6.10.2020. It is submitted that the respondent Nos. 4 and 5 are having possession and the Petitioner had tried to interfere in the possession of the Respondent Nos. 4 and 5. The Petitioner had therefore, even filed the false complaint against the Respondent Nos. 4 and 5. The petitioner has miserably failed to take over the possession of the land in question and also to falsely implicate the Respondent Nos.4 and 5 in false complaint. The Respondent No. 5 has obtained the copies of the statements under the RTI Act. Therefore, Nareshbhai Kastrubhai Dantani called police and thereafter, the police came and recorded the statements of all. It was specifically mentioned therein that the Respondent Nos.4 & 5 are having possession of the land in question and Vinubhai Zalavadiya, the Petitioner herein had filed false complaint against the Respondent Nos. 4 & 5.
19. Learned Advocate on behalf of the respondent No.9 submitted that he is one of the defendants (Defendant No.4) to the proceedings of Special Civil Suit No. 96 of 2020. He was one of the co owners of the suit land. He also happened to be one of the executants of sale deed dated 11-5-2017 executed in favour of the present Page 10 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT Petitioner. Lastly, Respondent No.9 submits that since panchnama was already drawn in the proceedings of the earlier suit proceedings being Special Civil Suit No. 212 of 2019, the drawing of panchnama again in the proceedings of Special Civil Suit No.96 of 2020 is not warranted. The sole object behind moving an application for appointment of Court Commissioner by Respondent Nos.1 to 5 in the proceedings of Special Civil Suit No.96 of 2020 appears to overcome/ get rid of earlier panchnama drawn in the proceedings of earlier Special Civil Suit No. 212 of 2019 and to create an evidence of possession in their favour, which is not permissible under the law.
20. In rejoinder, it is submitted that the respondent Nos.4 and 5 have joined hands with the Police Authorities and therefore after the Police complaint filed by the petitioner, the Police Authorities have recorded the statements of the occupants of the land, who were the employees of the petitioner. In the statements, it is recorded as if they have been engaged by the respondent Nos.4 and 5 and on their behalf they are occupying the suit land. This clearly establishes the connivance between the respondent Nos.4 and 5 and the Police Authorities. The persons, who were occupying the suit land on behalf of the petitioner, were influenced and pressurized to give such statements and this aspect is required considered seriously as the original owners of the land and the legal heirs who are also joined as the Defendants in the suit are still supporting the petitioner.
21. Learned Advocate for the respondents refers to and relies upon the judgment of the Kerala High Court in the case of Maroli Achuthan v/s Kunhipathumma reported in AIR Page 11 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT 1968 Ker 28 to submit that the report of the Commissioner does not form the basis of the investigation under Order-26 Rule-9 of the Code of Civil Procedure, but corroborates the evidence of inspection conducted by the Commissioner and such report can be treated as the evidence in itself. Reliance is placed on the decision of the Bombay High Court in the case of Kishore H. Desai vs Lilawati Virji Chheda And Ors. passed in Civil Revision Application No.518 of 1988 dated 11-12-1989 submitted that the requirement of the Order-26 Rule-9 of the Code of Civil Procedure, is the Notice to be issued by the Commissioner to the parties prior to local investigation and there is no requirement of issuing the notice to other parties before passing the order.
22. Learned Advocate for the respondents has relied upon the decision in the case of Palitana Sugar Mills Pvt. Ltd. v/s. Rasulkhan Aliyarkha Bloch (supra), however, reliance is placed on Para-13.
23. Having heard the learned Advocates for the parties and having perused the documents on record, it appears that with regard to the Revenue proceedings, it is on record that the Entry No. 16212 was mutated in the Revenue Records, recording the transaction of the Petitioner on 23.10.2018, after more than one and half years of the Sale Deed dated 11.5.2017. The Mamlatdar initially certified the same and later when Mamlatdar came to know about the death of donors of Power of Attorney and the filing of the false affidavit by the Petitioner, wrote a letter dated 25.1.2019 to the Dy. Collector for reversing the Entry No. 16212. The Dy. Collector vide his Order reversed the Entry No. 16212. The Page 12 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT Collector certified the Entry No.16212 and reversed the Order of the Dy. Collector. The SSRD vide his Order dated 20.8.2020 cancelled the Entry No.16212 mutated in favour of the Petitioner observing the facts with regard to the Government Land and about the death of donors of Power of Attorney and filing of false affidavit by the Petitioner for execution of the Sale Deed and for mutation of Entry No.16212. The Order of the SSRD is challenged by the Petitioner by filing Special Civil Application No. 10858 of 2020 and the matter was heard on 6.10.2020.
24. The said petition is stands rejected by CAV Judgment of this Court passed in Special Civil Application No.10858 of 2020 dated 26-10-2020 upholding the decision of Special Secretary dated 20-08-2020 by which the Revenue Mutation Entry No.16213 dated 23-01-2019 based on the registered Sale Deed dated 11-05-2017 in favour of the petitioner was set aside. The aforesaid proceedings being on the Revenue side with regard to the Mutation Entry, the Court does not propose to examine the same in the present suit, which is for the purpose of declaration and cancellation of the Sale Deeds.
25. The dispute is with regard to the Suit land bearing Survey / Block No. 663/1 admeasuring around 3136 sq. meters having the Final Plot No. 124 in Town Planning Scheme No. 9 (Vasna-Halmatia-Sargasan-Uvarsad-Tarapur-Vavol), admeasuring around 2038 square meters, carved out from Revenue Survey/Block No.663/1 of Village-Uvarsad, Taluka & District-Gandhinagar. The aforesaid suit land is also the subject matter in the Special Civil Suit No.212 of 2019, which is filed and pending. It is also not in dispute that the Page 13 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT parties in the Special Civil Suit No.212 of 2019 and Special Civil Suit No.96 of 2020 are the same. The plaintiffs of the Special Civil Suit No.96 of 2020 are the defendants in the Special Civil Suit No.212 of 2019 and the plaintiffs of Special Civil Suit No.212 of 2019 are the defendants in Special Civil Suit No.96 of 2020.
26. The plaint of Special Civil Suit No.96 of 2020 indicates that the Affidavit of the respondent No.4 dated 03-09-2020, appears to have been filed on 08-09-2020. The summons was issued on 15-09-2020 with the returnable dated of 30- 09-2020, the notice by the Court Commissioner (Annexure- B), was issued on 16-09-2020, to draw the panchnama on 20-09-2020. It is pertinent to observe that between 08-09- 2020 to 16-09-2020, the incident has taken place with regard to the suit land for which the Police complaint has been filed. The gist of which is as under:
"the accused no - 1 and 2 came to the above mentioned lands of the complainant at around 12-00 or 12-30 o'clock in the afternoon on 14/09/2020 with a mob of around 50 to 100 persons, vehicles and deadly weapons. Thereafter, they destroyed the board of the site, the board of public notice, CCTV camera, DVR etc. put at the said land. Thereafter, they threatened Kasturbhai Patani, the security guard and his 25 to 30 family members who reside in 5 or 6 rooms on said land and stated that, we have come to take the possession of this land. When Kasturbhai's wife opposed them, the said accused persons gave her kick and fist blows. Thereafter, Kasturbhai Patani's son Naresh Kasturbhai, who was not present at the time of the said incident, Page 14 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT came at around 1-30 o'clock and he informed the police about the said incident by dialing the number 100. Since the complainant does not have complete information regarding the above incident, an application in brief had been submitted immediately to the District Superintendent of Police with respect to the said incident."
27. The chronology as aforesaid attains importance as with regard to the same suit land when Special Civil Suit No.212 of 2019 was filed. In the Special Civil Suit No.212 of 2019, the panchnama was drawn on 19-09-2019. Along with the panchnama, map was also prepared by the Court Commissioner. The plaintiffs of Special Civil Suit No.96 of 2020, who were the defendants in Special Civil Suit No.212 of 2019, were also present and signatory to the panchnama drawn on 19-09-2019 [Page-37 to Page-41]. The map drawn by the Court Commissioner also indicates that the position as it existed as on 19-09-2019, which shows the existence of certain structures, Notice Board, etc. There is nothing on record to suggest of any development with regard to the suit land except for filing of Special Civil Suit No.96 of 2020 by the respondent Nos.1 to 5.
28. The dispute is with regard to the suit land is based on two Sale Deeds, one which was executed in favour of the petitioners on 11-05-2017 and the another executed by some of the co-owners i.e. the respondent Nos. 1 to 3 as the Second Sale in favour of the respondent Nos.4 and 5 on 10-07-2019. Special Civil Suit No.212 of 2019 was filed for declaration of right, title and ownership with regard to the suit land of the petitioner and to cancel the subsequent Page 15 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT Sale Deed dated 10-07-2019, whereas the Special Civil Suit No.96 of 2020 is filed with the prayer to cancel the Sale Deed dated 11-05-2017 is with regard to the suit land.
29. In the Special Civil Suit No.96 of 2020, the respondent Nos.
1 to 5 have pleaded that the plaintiff Nos.4 & 5 are the owners and occupiers of the Suit Land, pursuant to the registered Sale Deed No.17013 executed by the Plaintiff Nos.1 to 3 In favour of the Plaintiff Nos.4 & 5 on 19/07/2019. The name of the Plaintiff Nos. 4 & 5 were also mutated In the revenue records as owners and occupiers of the Suit Land vide Entry No.16761. The Defendant Nos.1 to 3 are the relatives and family members of the Plaintiff Nos.1 to 3. The Defendant Nos.4 to 12, are the heirs of Chhaganji Ratuji Thakor who was the brother of grandfather of Plaintiff Nos.1 to 3. Defendant No.13 is the person who has got the registered sale deed executed in his favour on the basis of concocted power of attorney after the death of several donors of Power of Attorneys. The said Sate Deed No.6523 was executed on 11/05/2017. The present suit is filed seeking cancelation of said registered sale deed executed by the Defendant No.13 as the power of attorney holder of Plaintiff Nos. 1 to 3 and Defendant Nos. 1 to 12 in his favour bearing No,6523 on 11-05-2017. The present suit is also filed seeking permanent injunction against the Defendant No.13, restraining the Defendant No.13 from illegally dispossessing the Plaintiff Nos.4 & 5 from the peaceful possession of the Suit Land.
30. The registered sale deed has been executed by the Plaintiff Nos.1 to 3 in favour of the Plaintiff Nos.4 & 5 on 19.7.2019 and the possession of the Suit Land was handed Page 16 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT over by the Plaintiff Nos. 1 to 3 to the Plaintiff Nos. 4 & 5 on 19.07.2019. Since then, the Plaintiff Nos.4 & 5 are having peaceful possession of the Suit Land in question. The Plaintiff Nos. 4 & 5 are apprehending that the Defendant no.13 who is a land grabber may misuse his sources to forcibly evict the Defendant Nos.4 & 5 from the land in question and therefore, the Plaintiff Nos.4 & 5 are compelled to file the present suit seeking permanent injunction against the Defendant no.13 restraining the Defendant No.13 from forcibly evict the plaintiff Nos.4 & 5 from, the land in question. The Defendant no.13 has got false and concocted registered sale deed in his favour on 11.5.2017. On the strength of the said sale deed, the Defendant no.13 may further transfer the land and may create third patty rights. Therefore, the plaintiff Nos. 4 & 5 are also claiming permanent injunction restraining the Defendant no.13 from transferring, alienating or otherwise, disposing of the land in question or creating third party rights.
31. The respondent Nos.1 to 5 have pleaded the cause of action as under:
"11. The cause of action for filing of the present suit arose on 10.05.2017 when the Gujarat Revenue Tribunal passed an order quashing and setting aside vesting of land with the State Government and directed the names of original owners to be recorded in revenue records. The cause of action further arose when on the basis of power of attorney dated 29.03.2004 alleged to be executed by heirs of Somaji Thakor and Punjaji Thakor, the registered sale deed was executed by Defendant no.13 in his own favour even after the death of Hiraben and Ganpatji Thakor way back in the year 2008 & 2007 respectively. The cause of action further arose when the on the basis of registered sale deed, the Page 17 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT Defendant no.13 applied for mutation of revenue records disclosing his registered sale deed for the first time on 23.10.2018 and the entry no.16213 was mutated in the revenue records on 23.10.2018 and the same was certified on 23.01.2019. The cause of action further arose when the Dy. Collector, vide his order dated 27.05.2019, passed in RTS appeal no.44 of 2019 quashed and aside the order of Mamlatdar and cancelled the entry no.16213 in favour of Defendant no.13. The cause of action further arose when the Plaintiff Nos.1 to 3 have executed registered sale deed in favour of Plaintiff Nos.4 & 5 on 19.07.2019 and the revenue records were mutated in favor of plaintiff Nos.4 & 5 on 24.07.2019. The cause of action further arose, when the Collector Gandhinagar passed an order in favour of the Defendant no.13 certifying the entry in favour of the Defendant No.13 vide his order dated 24.06.2020. The cause of action further arose when the Special Secretary, Revenue Department (Appeals) vide his order dated 20-08-2020 quashed and set aside the order passed by the Collector, Gandhinagar and cancelled the entry no. 16213. The cause of action further arose when the Defendant no.13 tried to take over the possession of the land in question and the plaintiff Nos.4 & 5 apprehended that the Defendant no.13 may forcibly dispossess the Plaintiff Nos.4 & 5 from the land in question and the Defendant no.13 may created third party rights. The suit being filed today is well within the period of limitation."
32. It is pertinent to observe what is recorded in the panchnama drawn on 19-09-2019 in Special Civil Suit No.212 of 2019. The Court Commissioner had proceeded to record the status of the land especially the Notice Board wherein the name of the petitioner is reflected as the owner and occupier of the suit land. Therefore, considering the chronology of event, which is recorded in the preceding paras and is of the time period in an around the filing of Special Civil Suit No.96 of 2020, this Court is of the view that the object behind filing an application Exh-7 was to Page 18 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT create the evidence to counter what has been recorded in the previous suit with regard to the same property.
33. The Court is of the view that Order-26 Rule-9 of the Code of Civil Procedure, does not contemplate the creation of evidence for this purpose. This Court in the case of Kanabhai Vishrambhai Gadhvi Versus Jenabai Ali Bhukea (supra), has held in Para-8 as under:
"8. I have learned Counsel for the parties at length and perused the application as well as the order made there under. The facts remain to be noted that the prayers made in the original suit is in respect of the suit premises. It is contended by the Plaintiff in suit that Respondents have unlawfully sold that property by dubbing himself as a tenant in question. The land in question could not have been said to be in any way belonging to the Defendants as the appropriate entry in the revenue record also helps the case of the Plaintiff. The Plaintiff sought declaration that the sale deed of the subject land made by the Defendant was therefore required to be declared null and void and Defendants be restrained from interfering with the possession of the Plaintiff of the suit premises. In view of this prayer, it can well be said that the dispute in question for the boundaries and overlapping boundaries of land, which would have warranted any local investigation, in fact, the title of the suit land is to be determined and when such a prayer is made, and especially when there is no dispute with regard to over lapping boundaries or any dispute requiring local investigation as envisaged under order 26 Rule 9 of the Code of Civil Procedure , the Court Commissioner could not have been appointed or else it would amount to giving an opportunity to parties to have the evidences or creating the evidences. The parties are at before the Court and they will have to avail the opportunity of establishing their case for all the contentions and therefore, in my view, the application for appointment of Court commissioner has rightly been rejected. This being so, the petition being bereft of merits and it deserves to be rejected and is accordingly Page 19 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT rejected. Rule discharged. Interim relief, if any, stands vacated. No costs."
34. This Court is of the view that the submission of learned Advocate for the respondent based on the judgment of Bombay High Court in the case of Kishore H. Desai vs Lilawati Virji Chheda And Ors. (supra), that there is no requirement of any Notice before passing the order of appointing the Commissioner to draw the panchnama and the only requirement is of the Notice to be given by the Court Commissioner before drawing the panchnama to all the parties. Such submission needs to be accepted. However, in the facts of this case, what is under consideration is not only the Order below Exh-7, but also the Order below Exh-10,which was an application for recall of the Order below Exh-7, which was passed on account of suppression of material fact.
35. As is recorded the respondent Nos.1 to 5- Original Plaintiffs of Special Civil Suit No.96 of 2020 were the defendants in Special Civil Suit No.212 of 2019 and were the party to the panchnama drawn in Special Civil Suit No.212 of 2019. The panchnama produced on record indicates that the presence of the respondent Nos.1, 2, 4 & 5 and their signature to the panchnama. If the pleadings of Special Civil Suit No.96 of 2020 is perused or even if the application for drawing the panchnama does not refer to the existence of previous panchnama with regard to the same property and therefore, when such fact was brought to the notice of the Court by way of an application Exh-10, the aspect of suppression of material fact to the knowledge Page 20 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT of the respondent Nos.1 to 5, ought to have been given due weightage, while passing the Order below Exh-10. The Civil Judge has proceeded to reject an application by assigning the reasons that when the Order is appealable, in that case, this applications / Orders recalled or reviewed, is not to be accepted.
36. The Court has also taken into consideration application Exh.7 in Special Civil Suit No.96 of 2020, where, in the application, it is only averred that the defendants therein (petitioners) have no right or share in the suit land, but are trying to take advantage of absence of the plaintiffs. It is also averred that the present situation of the suit premises is required to come on record for proper disposal of the suit. Such application does not refer to any previous panchnama or previous suit, i.e. Special Civil sit No.212 of 2019, wherein the plaintiffs were not only the defendants but had also participated in carrying out of panchnama. The Court is therefore of the view that application Exh.7 also lacked necessary particulars so as to justify carrying out of the panchnama again.
37. The Court is of the view that at each stage of the suit, the litigant coming to the Court, has to come with clean hands, it is not the case where the previous panchnama was drawn was behind back of the respondent Nos.1 to 5 or that they were unaware of drawing of such panchnama and were therefore, precluded from bringing this aspect to the notice of the Civil Judge in Special Civil Suit No.96 of 2020. The Court is also of the view that had this aspect been brought to the notice at the stage of passing the Order below Exh-7, then such material would have been of some Page 21 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020 C/SCA/11890/2020 JUDGMENT relevance before passing of the Order. Therefore, the Order below Exh-10, the Civil Judge has committed jurisdictional error in not recalling the Order which was based on the suppression of material fact.
38. The reasoning assigned by the Civil Judge simply that the plaintiff would not incur any damage by drawing of such panchnama and that the panchnama that has been drawn in the previous suit was one year old and that there is no bar on preparing the panchnama at subsequent stages, cannot be reasons which can hold any justification in the peculiar facts of this case.
39. Such reasons cannot be also justified as the Court is of the opinion that pending the Special Civil Suit No.212 of 2019, there is an attempt on the part of the parties to the suit in changing the status of the land in planned manner and filing of Second Suit so as to create the evidence with regard to the possession of the suit land which in the subsequent suit is now claimed by the respondent Nos.4 and 5 and to substantiate such claim and pleadings, an application for drawing the panchnama was made and ordered. This would amount to giving premium to the wrong.
40. This Court is of the view that as the challenge is not only to the Order below Exh-10, but also to the Order below Exh-7, which is the Order for appointing the Court Commissioner to draw the panchnama. This Court has also, examined the requirement of drawing of such panchnama in the surrounding facts which has emerged on record and deems it fit to set aside the Order below Exh-7 as well.
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41. One more glaring aspect that the Court may observe is about the Police intervention. It is on record that on 17-09- 2020, the written complaint has been given by the petitioner to the Police Inspector, Adalaj Police Station, narration made in the complaint [Page-30 to Page-36].
42. Thereafter, what is recorded in the Statement by the Police on 19-09-2020 in the name of the persons who were under the employment of the petitioner, appears to be unnatural and in those statements, those persons have recorded to extend that owner and occupiers are the respondent Nos.4 to 5 [Annexure-R2, Page-131 to Page-136]. This aspect clearly prima facie indicates the nexus of Police and respondent Nos.4 and 5, which in itself is the serious issue. Hence, also, the interference is required.
43. In view of the aforesaid reasoning, the order dated 22-09- 2020 passed below application Exh-10 and order dated 08- 09-2020 passed below Exh-7 passed by the 11th Additional Senior Civil Judge, Gandhinagar in the proceedings of Special Civil Suit No. 96 of 2020, are quashed and set aside.
44. In view of the aforesaid, the petition stands allowed to the aforesaid extent. Rule is made absolute to aforesaid extent with no order as to costs.
Direct service is permitted.
Sd/ (A.Y. KOGJE, J) Paresh Sompura/CAROLINE Page 23 of 23 Downloaded on : Wed Nov 25 21:37:28 IST 2020