Gujarat High Court
Narendra Mahasukhlal Mehta vs Maheshbhai Mohanbhai Mehta on 8 July, 2024
NEUTRAL CITATION
C/SCA/15575/2019 ORDER DATED: 08/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15575 of 2019
==========================================================
NARENDRA MAHASUKHLAL MEHTA
Versus
MAHESHBHAI MOHANBHAI MEHTA & ORS.
==========================================================
Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
RAVI B SHAH(5346) for the Petitioner(s) No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 4,5,6,7
NOTICE SERVED for the Respondent(s) No. 2,3
NOTICE UNSERVED for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 08/07/2024
ORAL ORDER
1. Heard learned advocate for the petitioner and learned advocate for respondent nos.4 to 7.
2. Learned advocate for the petitioner submits that respondent no.1 who is residing abroad has expired and he is deleted from lis before the learned Trial Court.
3. The present petition is filed with following reliefs :-
"A. admit and allow this petition/ B. issue writ of certiorari and/or any other writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned judgment and order dated 10/01/2019 passed by the learned Seventh Additional Civil Judge, Surat below application exhibit 59 in Regular Civil Suit no.241 2012;Page 1 of 4 Downloaded on : Tue Jul 09 21:00:38 IST 2024
NEUTRAL CITATION C/SCA/15575/2019 ORDER DATED: 08/07/2024 undefined C. pending admission hearing and final disposal of this petition, this pleased Hon'ble Court to may be stay the further proceeding of Regular Civil Suit no.241 of 2012;
D. this Hon'ble Court may be pleased to grant ex-parte order in terms of prayer clause (C) hereinabove;
E. this Hon'ble Court may be pleased to award costs of this petition:
F. pass such other orders that may be just and necessary in the facts and circumstances of the case in favour of the petitioner."
4. Essentially, it is petition against denying amendment in the pleadings. What appears that the plaintiff has filed Regular Civil Suit No.241 of 2012 before the learned Civil Court, Surat seeking following reliefs :-
"(1) As per the aforementioned details of the Plaintiff, all of the easement rights of the Plaintiff upon the property bearing Ward No.9, City Survey No.1341 and 1614 in connection with the suit property bearing Entry No. 9/1342 as well as all the rights of the Plaintiff as the legal and linear heir being the grandson of Late Mohanlal Harjivandas Mehta are prevailing without any restriction for more than 60 years and that the suit property does not have any wall and since there is only one wall in the property of the Plaintiff, such permanent legal order may be passed for the Respondents that the Respondents shall not cause any damage to the wall of the Plaintiff and the Respondents shall not cause or make to be caused any type of interference, obstruction, disturbance in any of the legal rights of easement of the property under direct possession and usage of I the Plaintiff or cause any reduction therein.
(2) Kindly declare that the Plaintiff has all the easement rights of the impugned suit property bearing Entry No. Page 2 of 4 Downloaded on : Tue Jul 09 21:00:38 IST 2024 NEUTRAL CITATION C/SCA/15575/2019 ORDER DATED: 08/07/2024 undefined 9/1342 and all the legal rights-authority as the legal and linear heir being the grandson of Late Mohanlal Harjivandas Mehta constantly prevailing for more than 60 years. It is extremely necessary that a permanent order in favour of the Plaintiff may be passed that the Respondents shall not make or cause to be made any type of changes or construction in the impugned property bearing Entry No. 9/1342 of the suit property, that they shall not tamper with or cause to be tampered with the wall, doors and windows, ventilator, passage, terrace and chowk (open area) of the property of the the plaintiff and that they shall keep that entire area open for access to air and light.
(3) Such an injunction order may be passed against the Respondents in this matter that the Respondents in this matter themselves or their agent, power-of-attorney holder or any other persons shall not sell out or transfer or cause to be sold out or transferred to any other person, the entire property or part thereof, situated at Balaji Road of Surat City, bearing Ward No.9, Entry No.1342 or they shall not transfer or assign or cause to be transferred or assigned the same.
(4) Such an order may be passed in favour of the Plaintiff that the Respondents shall not cause any damage to the wall, doors and windows, ventilator, etc. of the Plaintiff's property or they shall not cause any harm to the easement rights and right of access to the air and light for the property prevailing to be under possession of the Plaintiff and that they shall keep the wall of the Plaintiff's property safe and maintain the access to the air and light, as the impugned suit property does not have an independent wall.
(4A) Since the Plaintiff has been having an undistributed right and share in the suit property, such an order may be passed declaring that the sale-deed dated 09/05/2012 bearing Registered Sale Deed No.7873 executed in favour of Respondent Nos. 4, 5, 6 and 7 in respect of the suit property is bogus, illegal and null and void to the extent of the share of the Plaintiff therein.
(4B) Such a permanent injunction order may be passed Page 3 of 4 Downloaded on : Tue Jul 09 21:00:38 IST 2024 NEUTRAL CITATION C/SCA/15575/2019 ORDER DATED: 08/07/2024 undefined restraining the Respondent Nos. 4 to 7 that they themselves shall not sell out, mortgage, gift or transfer the said suit property to any other person or transfer the possession and title thereof either by themselves or through others and that they shall not make or cause to be made any type of modification or development in the current condition of the property in any manner and that they shall not damage or cause to be damaged any of the rights of the Plaintiff."
5. Suit was filed for declaring easment rights against defendants. Present respondent has purchased disputed property before filing of the suit. They are joined as per Order 1 Rule 10 of CPC. Defendants in the suit who are joined as per Order 1 Rule 10 of CPC obtained title of disputed property through registered sale deed and prior to that seller had obtained title through Will. Plaintiff in the suit for easment right intend to challenge proprietary of the Will, which bestow in predecessor in title of defendant. Pendent lite, if amendment is allowed, it would change nature of entire suit and suit for easment right would come within the purview of suit challenging title of defendants. Plaintiff has asked relief for easment right, essentially which lis is available to owner of property.
6. In view of above, since proposed amendment was completely changing nature of suit, learned Trial Court has rightly rejected the application. No interference is called for in limited jurisdiction under Article 227 of the Constitution of India. The present petition is dismissed.
(J. C. DOSHI,J) SATISH Page 4 of 4 Downloaded on : Tue Jul 09 21:00:38 IST 2024