Gujarat High Court
Rajasthan Shrimani Brahman Samaj Trust vs Ayodhyapuri Co.Operative Housing on 10 November, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/AO/450/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 450 of 2014
With
CIVIL APPLICATION NO. 11773 of 2014
In
APPEAL FROM ORDER NO. 450 of 2014
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RAJASTHAN SHRIMANI BRAHMAN SAMAJ TRUST ....Appellant
Versus
AYODHYAPURI CO.OPERATIVE HOUSING
SOCIETY LTD. ....Respondent
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Appearance:
MS NEETA PANDYA, ADVOCATE FOR
MR AR GUPTA, ADVOCATE for the Appellant
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 10/11/2014
ORAL ORDER
1. Challenge in this Appeal from Order is made by the defendant to the order passed by the Principal Senior Civil Judge, Ahmedabad (Rural) dated 02.04.2014, below Application Exh.44 in Regular Civil Suit No.512 of 2013.
2. Learned advocate for the appellant has submitted that, the direction by the Court below to the defendant - the present appellant to remove the lock from the gate to go to the common plot of the plaintiff Society is unsustainable since the present appellant had constructed the gate and further that, even in the Panchnama, it had come on record that there was Page 1 of 4 C/AO/450/2014 ORDER a lock of the defendant as well. It is submitted that, the impugned order be interfered with.
3. From the record it transpires that, what weighed with the Trial Court is reflected in the reasons recorded in para:4 of the impugned order, which reads as under.
"4. Looking to the entire facts on record. Here, as per the pleading of the plaintiff they have sought for a relief to the fact that, defendants have made encroachment upon the common plot of the society. In support of their say at the relevant time court commissioner was appointed for preparing the panchanama of the spot and upon the fact of the report of court commissioner it prima facie transpires that, upon the spot a temple and office was found and a gate was also in existence upon the spot. Now, it is the contention of plaintiff that, defendants have made encroachment upon the common plot of the society and for the purpose of proving the owner ship of common plot plaintiff have produce some cogent prima facie evidence with their documentary evidence list. Whereas the defendants have orally stated that they have got right upon the said property. But, if there would be any right of ownership upon the property then they would have to produce evidence to the fact Page 2 of 4 C/AO/450/2014 ORDER that from so and so persons they have purchased the property and they have become the owner. Here, in absence of such type of cogent evidence merely oral statement would not entitled them to state that they have right to put the lock upon the lock of plaintiff and therefore, this Court is of the firm opinion that, the lock which has been put by the defendants upon the lock of plaintiff society is requires to be removed and to that extend, without going into merits of this case, this application is requires to allowing and following final order is passed.
-: ORDER :-
This application Ex.44 is hereby allowed. Defendants are hereby ordered to remove the lock forthwith, which has been put on by them upon the gate of common plot of the plaintiff society.
Costs would be the costs of suit."
4. Having heard learned advocate for the appellant and having gone through the material on record, more particularly the reasons recorded by the Trial Court, this Court finds that, the Court below has not committed any error while giving impugned direction. It is also required to be noted that, the decision of Hon'ble the Supreme Court of India in the case of Maria Margarida Sequeria Fernandes versus Erasom Jack de Sequeria reported in AIR 2012 SC 1727 fully supports the impugned order. This Appeal from Order needs to be Page 3 of 4 C/AO/450/2014 ORDER dismissed.
5. At this stage, learned advocate for the appellant has submitted that, the possession of the suit land is with the appellant. In this regard it needs to be recorded that, the same will not take the case of the appellant any further. Suffice it to record that, the so-called possession over the common plot of the Housing Cooperative Society and a road therein by the defendant is already claimed to be encroachment by the plaintiff Society and is prima facie accepted to be so by the Court below. Further, in view of the observations and directions of Hon'ble the Supreme Court of India in the case of Maria Margarida (supra), this contention can not be accepted. It is recorded that, even while adjudicating the Civil Suit, this has to be kept in view by the Trial Court.
6. This Appeal from Order is dismissed. Since no notice is issued to the other side, cost is not imposed.
(PARESH UPADHYAY, J.) mhdave/22 Page 4 of 4