Gujarat High Court
Leela Ship Recycling Pvt Ltd Thru ... vs Gopi Paper Mart India Pvt Ld Thru ... on 20 September, 2018
Author: C.L. Soni
Bench: C.L. Soni
C/AO/213/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 213 of 2018
With
R/APPEAL FROM ORDER NO. 214 of 2018
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LEELA SHIP RECYCLING PVT LTD THRU GIRISHCHANDRA
PRAVINCHANDRA RAMAIYA
Versus
GOPI PAPER MART INDIA PVT LD THRU HARSHADKUMAR MOHANLAL
PATEL
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Appearance:
MR KAMAL TRIVEDI, SENIOR ADVOCATE WITH MR HRIDAY
BUCH(2372), ADVOCATE for the PETITIONER No. 1
MR MAULIK S SHETH(3586) ADVOCATE for the RESPONDENT No. 1
MR.D K.PUJ(3836) ADVOCATE for the RESPONDENT No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 20/09/2018
ORAL ORDER
1. The appellants - original plaintiffs have filed the suits for declaration and seeking removal of encroachment from their lands bearing survey no.334/12 admeasuring 16188 sq.mtr., survey no.334/84 admeasuring 6070 sq.mtr. and survey no.334/86 admeasuring 24281 sq.mtr., situated at Village: Bhamsara, Taluka: Bhavla, District:
Ahmedabad. The respondent - original defendant claims to be owner of survey no.334/88 admeasuring 16646 sq.mtr. The respondent has denied to have made any encroachment on the land of the appellant. It is the say of the respondent that it has constructed factory shed and other Page 1 of 5 C/AO/213/2018 ORDER construction is in progress on its land under due various permissions taken from the concerned authority.
2. The dispute as regards the encroachment may be on account of the absence of proper identification of the boundary line / boundary marks. Therefore, the resolution of such dispute could be arrived by proper identification and demarcation of the boundaries of the lands of the parties so as to find whether the construction of the factory shed and other construction being carried on by the respondent are on the land of the appellants as alleged by them.
3. Learned senior advocate Mr.Kamal Trivedi appearing with learned advocate Mr.Hriday Buch for the appellants and learned advocate Mr.D. K. Puj and learned advocate Mr.M. S. Sheth appearing on caveat for the respondent, therefore, agreed to have identification and demarcation of the boundaries of the lands of the parties through the District Inspector of the Land Records (DILR). They state that they have no objection if identification and demarcation of the lands of the parties is carried out by the DILR. Learned senior advocate Mr.Trivedi, however, submitted that if on identification / demarcation of the boundaries it is found that the construction of the factory shed and further Page 2 of 5 C/AO/213/2018 ORDER construction being made by the respondent is on the land of the appellants, the respondent should immediately remove encroachment / construction from the land of the appellants. To such submission, learned advocate Mr.Puj stated under the instruction that respondent is agreeable to remove encroachment / construction if found made by the respondent on the lands of the appellants. The Court, therefore, asked the learned advocate Mr.Puj to file undertaking of the respondent to the above effect. Mr.Puj has now tendered the undertaking dated 19.09.2018 by Harshadkumar Mohanlal Patel, Director of Respondent / Original Defendant for the respondent - company which reads as under:
1. That the Respondent / Original Defendant is agreeable to the joint measurement and demarcation of the lands of the Appellant / Original Plaintiff i.e. land bearing Survey Nos.334/12, 334/84 and 334/86 Moje: Bhamsara, Taluko:
Bhavla, District: Ahmedabad and the land of the Respondent / Original Defendant i.e land bearing Survey No.334/88 by the office of the DILR, District Survey Office, Ahmedabad or the any competent authority as may be authorised and directed by this Hon'ble Court.
2. That the Respondent / Original Defendant also undertakes before this Hon'ble Court that the Respondent / Original Defendant will abide by the outcome of the joint measurement and demarcation that may be made by the office appointed by this Hon'ble Court and the Respondent / Original Defendant will not claim any equity for the construction already put up or that may be put after 18.09.2018. The Respondent / Original Defendant will remove the construction if the same is found by this Hon'ble Court, on the basis of the reports which may be submitted before this Hon'ble Court that the same is on the lands of the Appellant, as per the further Orders of Page 3 of 5 C/AO/213/2018 ORDER this Hon'ble Court in the present Appeal.
4. In view of the above and considering the nature of the dispute in the suits in connection with which the present appeal from orders have arisen, the Court finds it appropriate to direct the Settlement Commissioner to appoint DILR, Ahmedabad District and DILR of any other district to identify and demarcate the boundaries of the lands of the parties and to report this Court as to whether the construction of the factory shed and further construction being made by the respondent is on the land of the appellants or not. The Settlement Commissioner shall also depute one Survey Officer in whose presence the procedure of identification and beneficiary marks of the lands shall be undertaken. The both DILR shall jointly undertake such procedure for identification and demarcation of the land on the date which may be fixed by Settlement Commissioner in presence of respective parties and/or their representatives and then submit the report to this Court on or before the next date of hearing.
5. For the purpose of carrying out the work of identification and demarcation of the lands of both the parties, the parties shall first appear through their authorized officers before the Settlement Commissioner on 26.09.2018. It will be open to the Page 4 of 5 C/AO/213/2018 ORDER learned advocates for the parties to accompany the parties. On appearance of the parties on 26.09.2018 before the Settlement Commissioner, the Settlement Commissioner may appoint the DILRs and fix the date to carry out the work of identification / demarcation of the lands of the parties but in any case the identification / demarcation of the lands of the parties shall be completed within three weeks from the date of receipt of this order and the report to that effect shall be made on or before the next date of hearing.
6. S.O to 22nd October 2018. Direct service is permitted, today.
(C.L. SONI, J) Vijay Page 5 of 5