Gujarat High Court
Maliben Rajshibhai Solanki vs Keshabhai Lakhubhai @ on 26 April, 2013
Author: G.B.Shah
Bench: G.B.Shah
MALIBEN RAJSHIBHAI SOLANKIV/SKESHABHAI LAKHUBHAI @ KARMANBHAI LAKHMANBHAI SOLANKI....Respondent(s) C/SCA/7074/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7074 of 2013 ================================================================ MALIBEN RAJSHIBHAI SOLANKI & 1....Petitioner(s) Versus KESHABHAI LAKHUBHAI @ KARMANBHAI LAKHMANBHAI SOLANKI....Respondent(s) ================================================================ Appearance: MR CHETAN K PANDYA, ADVOCATE for the Petitioner(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE G.B.SHAH Date : 26/04/2013 ORAL ORDER
1. Before proceeding with the matter, learned advocate Mr.Chetan K.Pandya for the petitioners has submitted that through over-sight, he has not produced the copy of the order dated 29.12.2011 passed below Exh.5 in Regular Civil Suit No.5 of 2009. Leave to place on record the copy of the order dated 29.12.2011 passed below Exh.5 in Regular Civil Suit No.5 of 2009 is granted.
2. The present petition is directed against the order dated 14.3.2013 passed by learned 5th Additional District Judge, Jam Khambhaliya below Exh.31 in Civil Misc. Appeal No.7 of 2012 whereby learned Appellate Judge, for the reasons recorded in the order, has allowed the appeal.
3. The broad facts of the case are that the petitioners original plaintiffs have filed Regular Civil Suit No.5 of 2009 in the court of learned Civil Judge, Bhanvad for declaration and permanent injunction against the respondent original defendant. Pending the said suit, the petitioners original plaintiffs also filed the application at Exh.5 praying interim injunction against the respondent original defendant. The said application at Exh.5 came to be allowed by learned Civil Judge, Bhanvad by order dated 29.12.2011. Being aggrieved, the respondent original defendant herein has filed Civil Misc. Appeal No.7 of 2012 before the court of learned 5th Additional District Judge, Jam Khambhalia. Learned Appellate Court by the impugned order dated 14.3.2013 has allowed the said appeal and vacated the interim order dated 29.12.2011 passed below Exh.5 in Regular Civil Suit No.5 of 2009. Hence, the present petition.
4. Heard learned advocate Mr.Chetan K.Pandya for the petitioners.
5. Learned advocate Mr.Chetan K.Pandya for the petitioners has drawn attention of this Court on the map produced today by him to contend that the petitioners land is situated at Survey No.178 and the land of the respondent original defendant is situated on the extreme western side of Survey No.176, more particularly, it is Survey No.176 paiki 1 and as shown in the map, in the way which proceeds from Gadu Gamtal towards Survey No.175, there are two ways shown, one in red ink and another is in green ink and accordingly, both the ways are available for the respondent original defendant to go through the same in his survey No.176/1 and in spite of that, he is claiming his easementary right on the extreme western part of the boundary of Survey No.178.
6. It is mainly submitted by learned advocate for the petitioners that the above referred way is the only way which is being used by the petitioners original plaintiffs herein and as such, as a matter of right, the respondent original defendant cannot use the said way and hence, the suit has been filed against the respondent original defendant herein. He has further submitted that learned trial Court has passed the order in favour of the petitioners original plaintiffs herein and the application at Exh.5 was allowed. The said order was challenged by the respondent original defendant herein by way of preferring Civil Misc. Appeal No.7 of 2012 before the learned Appellate Court. He submitted that, without assigning any reasons, learned Appellate Court has passed the order on 14.3.2013 and the order passed by the learned trial Court has been set aside.
7. In support of his submissions, learned advocate for the petitioners has put reliance on the affidavit at page 41 filed by Jethabhai Dahyabhai Dhut and as mentioned in it, one Jetha Kana Solanki has filed false affidavit in favour of Karman Lakhman. More over, the respondent original defendant is concerned, he has filed the affidavit of Jetha Kana having the similar name as stated earlier and it is stated that he has never filed the said affidavit.
8. I have carefully perused the order dated 29.12.2011 passed by the Court of Principal Civil Judge, Bhanvad in Regular Civil Suit No.5 of 2009 as well as the order dated 14.3.2013 passed by 5th Additional District Judge, Jam Khambhalia in Civil Misc. Appeal No.7 of 2012. The suit filed by the present petitioners original plaintiffs praying for declaration and injunction against the respondent original defendant to the effect that the respondent did not have any right of way and so he be restrained from using the petitioners agricultural land bearing Revenue Survey No.178 as a right of way. The Court of Principal Civil Judge, Bhanvad had decided Exh.5 and restrained the respondent from passing through the petitioners land bearing Revenue Survey No.178 and further restrained not to damage the petitioners crop. The Appellate Court has reversed the said order dated 29.12.2011 below Exh.5 mainly on the ground that the consideration of the documents, more particularly, registered sale deed at Mark 19/12 dated 17.4.1990 and the rest of the documents have not been properly done by the court of Principal Civil Judge and hence expedited the hearing of trial. I have carefully perused the same. It is well settled legal position that generally the Court cannot grant such injunction at the initial stage which in fact allows the entire suit. Considering the above referred dispute, in my view, the appellate court has passed just, proper and balanced order which does not call for any interference in a petition under Article 227 of the Constitution of India.
9. Under the aforesaid circumstances, I do not find any substance in this petition and hence the same deserves to be dismissed. Accordingly, this petition stands dismissed.
(G.B.SHAH, J.) pathan Page 5 of 5