Gujarat High Court
Bharatsinh Janiya Vasava vs Lhr Of Kotiya Dhanabhai Vasava ... on 26 March, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SA/190/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 190 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 190 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SECOND APPEAL NO. 190 of 2020
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BHARATSINH JANIYA VASAVA
Versus
LHR OF KOTIYA DHANABHAI VASAVA PRATAPBHAI KOTIYA
VASAVA SINCE DECD THROUGH LHR
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Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1
for the Respondent(s) No. 1
MR MTM HAKIM FOR MR MOHSIN M HAKIM(5396) for the
Respondent(s) No. 1.1,1.2,1.3,1.4
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 26/03/2021
ORAL ORDER
Heard learned Advocate Shri N.K. Majmudar for the appellant and learned Advocate Shri MTM Hakim with Shri Mohsin M. Hakim for the respondents.
Learned Advocate Shri Majmudar submits that he would be filing fresh set of four further substantial questions through E Mode and also through physical filing. A copy thereof is supplied to this Court and the same is directed to be taken on record. After hearing the learned Advocates for the parties, this Court is of the opinion that the following substantial questions needs to be answered:
Page 1 of 4 Downloaded on : Sat Mar 27 05:26:11 IST 2021 C/SA/190/2020 ORDER(1) Whether both the Courts below have committed substantial error of law in interpreting / applying Section 73A, 73AA of Bombay Land Revenue Code as during period between 4/4/1961 to 31/1/1981 all transaction pertaining to land would get regularized?
(2) Whether both the Courts below have committed substantial error of law in interpreting and applying the provisions of Section 102 of the Indian Evidence Act?
(3) Whether both the Courts below have committed substantial error of law in interpreting principle of estoppels and waiver and Whether both the Courts below have committed substantial error of law in not considering documentary evidence at Exhibit 61 to 68?
(4) Whether both the Courts below have committed substantial error of law in not holding that suit filed in the year 2008 has been barred by law of limitation as considering the pleadings and evidence on record, and considering the averments in plaint and evidence of the plaintiff and the concerned witnesses, the defendants have remained in possession of the suit property for more than 30 years before filing of the suit and considering the prayer clause of the plaint the Courts below have committed substantial error of law in deciding issue of suit barred by limitation, as considering the Article 15 of the Limitation Act declaratory relief has to be prayed within the period of 3 years, and considering the article 63, 64 and 65, the prayer for possession also was time barred?
(5) Whether the appellate Court has committed substantial error of law in not considering and not passing any order below ex. 6 and ex.
7 i.e. application preferred by the appellants seeking productions of additional evidence / documents under provisions of Order 41, Rule 27 Page 2 of 4 Downloaded on : Sat Mar 27 05:26:11 IST 2021 C/SA/190/2020 ORDER of CPC, 1908?
(6) Whether both the Courts below have committed substantial error of law in interpreting and applying the provisions of Section 14 of Limitation Act in respect of delay occurred in preferring the suit on the ground of plaintiff had undertaken various revenue proceedings?
Considering the same, ADMIT. Learned Advocate Shri Hakim waives service of notice of admission on behalf of the respondents.
ORDER IN CIVIL APPLICATION NO.1 of 2020 :
Heard learned Advocate Shri N.K. Majmudar for the applicant and learned Advocate Shri MTM Hakim with Shri Mohsin M. Hakim for the respondents.
By way of this application, the applicant prays for staying the impugned judgment and order dated 18.08.2020 passed by the learned District Judge, Narmada in Regular Civil Appeal No.9 of 2019 confirming the judgment and decree dated 17.01.2019 in Special Civil Suit No.4 of 2008 passed by the learned Principal Civil Judge, Sagbara.
Considering the fact that this Court has formulated six substantial questions of law in this Second Appeal after hearing the learned Advocates for the parties, therefore, this Court is of the opinion that while the impugned judgment and decree may be stayed, appropriate orders for deposit of accrued payment of means profit as granted by the learned Trial Court and confirmed by the First Appellate Court deserves to be passed to balance equities.Page 3 of 4 Downloaded on : Sat Mar 27 05:26:11 IST 2021 C/SA/190/2020 ORDER
Under such circumstances, the impugned judgment and order dated 18.08.2020 passed by the learned District Judge, Narmada in Regular Civil Appeal No.9 of 2019 and the judgment and decree dated 17.01.2019 in Special Civil Suit No.4 of 2008 passed by the learned Principal Civil Judge, Sagbara, are stayed on condition that the appellant deposits the entire outstanding amount of means profit with the learned Trial Court. As regards the means profit which would be accruing hereinafter, the same shall also be deposited by the appellant before the trial Court by 31st of March of every year. In so far as arrears of the means profit is concerned, the appellant to deposit the same by 31.05.2021. The same can be withdrawn by the respondents herein after submitting an undertaking to the satisfaction of the learned trial Court that they would refund the amount with interest @ 6% from the date of the withdrawal to the appellant herein in case the appellant loses the present appeal. As far as the regular accrual of means profit is concerned, the same would also be withdrawn by the respondents herein subject to the undertaking as hereinabove.
With the above direction, the Civil Application stands disposed of as allowed. Direct service is permitted.
(NIKHIL S. KARIEL,J) Y.N. VYAS Page 4 of 4 Downloaded on : Sat Mar 27 05:26:11 IST 2021