Gujarat High Court
Thobhanbhai vs State on 11 August, 2010
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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SCA/9585/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9585 of 2009
With
SPECIAL
CIVIL APPLICATION No. 9586 of 2009
To
SPECIAL
CIVIL APPLICATION No. 9587 of 2009
=============================================
THOBHANBHAI
PABABHAI BHARVAD - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=============================================
Appearance
:
MR PY DIVYESHVAR for
Petitioner(s) : 1,
MR KARTIK PANDYA ASST. GOVERNMENT PLEADER for
Respondent(s) : 1,
NOTICE SERVED for Respondent(s) : 2 - 3.
MR
HARSHAD D SHUKLA for HL PATEL ADVOCATES for Respondent(s) :
4,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 11/08/2010
ORAL
ORDER
1. These petitions are filed under Articles 226 and 227 of the Constitution of India by the petitioners challenging concurrent findings of facts passed by the trial court as well as the lower appellate court in order dated 30.10.2007 passed by 7th Additional Senior Civil Judge, Himmatnagar below Exh.6 as confirmed by the Lower Appellate Court vide order dated 7th July, 2009 below Exh.20.
2. It is the case of the petitioners that they are bonafide purchaser and user of the land in question since 35 to 40 years and also in possession of the land. After N.A. permission etc. applied by original owner, the land was sold to the petitioners by way of registered sale deed. That, survey No. 114 admeasuring 72,641.03 sq. mtrs of old tenure land at Himmatnagar, according to the petitioners was owned and possessed by one Mr.Indrasinhji Dhanesinjhi Medatia and on conversion as a non-agricultural land, lay out plan were drawn. The plots were purchased by the petitioners and their relatives and entries were also mutated in the revenue record. It is the case of the petitioners that taxes were collected by Nagarpalika, even plottings were approved by the State Government in the year 1976 and in the year 1987 names of the petitioners were also recorded in place of the original land owner and it was reflected in the Nagarpalika record. When the notices were issued on 8.4.2006 and 10.4.2006 by the Nagarpalika to remove the illegal construction of huts and houses on the land belonging to the Nagarpalika/Government the above action was challenged by filing Civil Suit No.146 of 2006 before the learned Principal Judge (S.D.) Himmatnagar and after considering the relevant record, the trial judge prima face came to the conclusion that the land which was purchased by the petitioners barring Survey No.114 never belonged to the original owner but it was for common plot and to be used for the public purpose. The entries recorded in the Government records were illegal and, therefore, a case was made out not to grant any interim relief. That, being aggrieved and dis-satisfied by the above order passed by the trial court, an appeal was preferred and after considering the record of the case in depth and analyzing the relevant evidence on record the Appellate Court found that the Dy. Collector had set aside the entires related to the sale deed from the revenue record and the name of Nagarpalika was entered in relation to the common plot in the village form No.6. It was further noticed that the vendor of the land had no title and legal possession by virtue of such sale deed and was rightly not relied on in exercise of the powers by the trial court by refusing interim injunction, is just and legal.
3. Mr. P.Y.Divyeshwar, learned advocate for the petitioner heavily relied on the sale deed, entries in the revenue record, N.A. permission granted by the authorities and taxes paid to the municipality by the petitioners and submitted that possession of the petitioners with regard to residential accommodation is protected and trial court be directed to dispose of the suit as early as possible.
4. Mr. Harshad Shukla, learned advocate for the Nagarpalia submitted that the very purchase of the disputed land of registered sale deed dated 11.7.1985, the seller had no title, right over the disputed land and the said sale deed document is of paiki common plot land. It is submitted that false entries recorded in the revenue as well as municipal record were rejected and this entry were rejected in the year 2006. It is further submitted that so far as common plot admeasuring about 5023 sq. mtrs. of Survey No.114 is concerned, a resolution was passed by the Nagarpalika and possession was taken over. It is further submitted that even the registered sale deed do not mention the plot number, for which, consideration was paid. It is also submitted that as early as a public advertisement dated 10.6.1999 was issued and it was clarified that the plot admeasuring 5023 sq. mt. of Survey No.114 was with Municipality of Himatnagar and reserved for the public purpose. Inspite of the above fact, no objection were received in 30 days. However, the petitioners made encroachment over the disputed land and encroacher on the public land do not deserve any discretionary relief at the hand of the Court.
5. In the rejoinder the petitioners submitted that dispute with regard to revenue entries, are pending before the revisional authority.
6. Considering the facts and circumstances of the case, perusal of the record including the orders impugned passed by the trial court as well as the lower appellate court, I am of the opinion that both the courts have not committed any error of fact much less of law. That, exercise of discretionary jurisdiction for considering application for interim injunction by the courts is well within settled principles of grant of refusal of injunction and have considered prima facie case, balance of convenience, hardships and irreparable loss which cannot be compensated in terms of money.
7. The petitioners are purchaser of the property froma person who had no legal title whatsoever and even alleged sale deed do not refer to a particular plot number and inspite of public notice, encroachment is made by the petitioners to a common plot, such person is rightly denied injunction by the courts. It is borne out from the record that the vendor had no legal title to sell the land and revenue entries were set aside by the higher authority. As early as in the year 1999 even members of the society who were residing on the land in question had requested Nagarpalika of Himatnagar to obtain the possession of the common plot and to develop it for public interest. When the petitioner is having no legal authority, ownership or title continues to remain in possession of the land in question unauthorisedly and also make attempts to encroach the land reserved for public purpose do not deserve any interim relief at the hand of this Court in exercise of powers under Articles 226 and 227 of the Constitution of India.
8. No case is made out to exercise powers under Articles 226 and 227 of the Constitution of India. Petitions are rejected.
9. Learned advocate for the petitioners request that stay granted by this Court be extended, is not accepted.
[ANANT S. DAVE, J.] //smita// Top