Gujarat High Court
Lh Of Narendrakumar C Rangwala vs Surekhaben Niranjanbhai Choksi on 17 September, 2025
NEUTRAL CITATION
C/SCA/15981/2013 JUDGMENT DATED: 17/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15981 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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LH OF NARENDRAKUMAR C RANGWALA & ORS.
Versus
SUREKHABEN NIRANJANBHAI CHOKSI & ORS.
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR ARPIT A KAPADIA(3974) for the Petitioner(s) No. 1.2,1.3,1.4
UNSERVED EXPIRED (N) for the Petitioner(s) No. 1.1
MR SAURABH G AMIN(2168) for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 3,6,7
RULE UNSERVED for the Respondent(s) No. 4
UNSERVED EXPIRED (R) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/09/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Arpit A. Kapadia for the petitioners and learned advocate Mr. Saurabh G. Amin for respondents No.1 & 2.
2. Though served, none appeared on behalf of respondents No. 3, 6 & 7 as respondent No.4 is remain Page 1 of 9 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:09 IST 2025 NEUTRAL CITATION C/SCA/15981/2013 JUDGMENT DATED: 17/09/2025 undefined unserved and respondent No.5 reported died but his legal heirs are not brought on record.
3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"A. The Hon'ble Court may be pleased to issue writ of certiorari and / or any other appropriate writ, direction and order to quash and set aside the order dated 1.10.2013 passed by the learned 7th Additional Senior Civil Judge, Surat on an application filed at Exh.78 in Regular Execution Petition No.27 of 1995;
B. Pending hearing and final disposal of the petition, Your Lordships be pleased to stay the implementation, operation and execution of the order dated 1.10.2013 passed by the learned 7th Additional Senior Civil Judge, Surat on an application filed at Exh.78 in Regular Execution Petition No.27 of 1995;
C. To pass such other and further order/s necessary in the interest of justice."
4. At the outset, learned advocate Mr. Arpit Kapadia would submit that despite there is specific request made by the applicant of execution proceedings that owner of plot No.11 should maintain 16 feet distance from the plot No.14 i.e. corner road between two plots, the Executing Court has completely lost sight such request, whereby, fell in error in directing the petitioners to maintain 16 feet distance and to have thereafter, his compound wall of plot No.14.
Page 2 of 9 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:09 IST 2025NEUTRAL CITATION C/SCA/15981/2013 JUDGMENT DATED: 17/09/2025 undefined 4.1 Learned advocate Mr. Kapadia would submit that the Executing Court having not appreciated the objection so made by the petitioners having filed their objection below Exh. 80 in the execution proceedings, which ultimately resulted into passing of erroneous order.
4.2 Learned advocate Mr. Kapadia would further submit that as per additional affidavit so filed by the petitioners before this Court on 11.11.2013 would clearly suggests that there was no encroachment made by the petitioners herein holding plot No.14 in question, rather there appears an encroachment made by owner of the plot No.11, inasmuch as he was allotted 150.37 sqmts of land as suggested from Government record produced along with affidavit, whereas, as per documentary evidence on record, his possession 172.27 sqmts of land which is excess to his allotment.
4.3 Learned advocate Mr. Kapadia would further submit that plots No. 14 and 11 are corner plots facing each other and there was a bottle-neck road between such plots. It is submitted that if the aforesaid aspect could have been taken note by the Executing Court and as per decree, it was agreed between all plot holders of the society to have 16 feet road between two plots facing each other, the direction which was issued by the Executing Court vide its impugned order Page 3 of 9 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:09 IST 2025 NEUTRAL CITATION C/SCA/15981/2013 JUDGMENT DATED: 17/09/2025 undefined dated 01.10.2013 requires to be revisited.
4.4 Learned advocate Mr. Kapadia would respectfully submitted that the Executing Court requires to consider all such aspects before directing only the petitioners - owner of plot No.14 to keep distance of 16 feet road from his compound wall vis-a-vis plot No.11 is unjustified.
4.5 So, making the above submission, learned advocate Mr. Kapadia would request this Court to remand the matter back to the trial Court concerned.
5. Per contra, learned advocate Mr. Saurabh Amin would submit that respondents No.1 & 2 herein are original plaintiffs, filed Regular Civil Suit No. 807 of 1992 before the Civil Court, wherein there was a consent terms arrived between the parties whereby, all the parties to the suit agreed to have 16 feet wide road in the society and thereby, members of the society / plot owners required to maintain distance between the opposite plots accordingly i.e. 16 feet.
5.1 Learned advocate Mr. Amin would further submit that as there is a breach of consent terms executed by defendants, the Execution Application came to be filed by respondents No.1 & 2 herein (original plaintiffs), wherein Page 4 of 9 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:09 IST 2025 NEUTRAL CITATION C/SCA/15981/2013 JUDGMENT DATED: 17/09/2025 undefined after appointment of Court Commissioner, and getting facts on record, that plot owners in question not keeping 16 feet distance between opposite plots as observed in the impugned order, the Executing Court has not committed any error in passing the impugned order.
5.2. Learned advocate Mr. Amin would further submit that anxiety of the respondents No.1 & 2 - applicants of Execution Application that there should be 16 feet distance maintained by all plot owners thereby, there would be no mishap happened inasmuch as in corner area, there would be bottle neck situation, if such 16 feet distance not maintained by the plot Nos.11 and 14, chances of accident cannot be ruled out. It is respectfully submitted that if this Court finds that there is some discrepancy in passing of final direction issued by the Executing Court, it may remand the matter back to the Executing Court for its re-adjudication thereby, after giving an opportunity of hearing to all the parties concerned, the Executing Court can passed fresh order on the subject matter.
5.3 Lastly, learned advocate Mr. Amin would submit that as such respondents No.1 & 2 are not having any personal grievance against the petitioners but their request before the Executing Court was to the effect that let 16 feet wide Page 5 of 9 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:09 IST 2025 NEUTRAL CITATION C/SCA/15981/2013 JUDGMENT DATED: 17/09/2025 undefined road available for commuting all including members of the society including respondents No.1 & 2 as agreed between the parties.
5.4 Making the above submission, learned advocate Mr. Amin would request this Court to pass appropriate order, in the interest of justice.
6. Having heard learned advocates for the respective parties, prima-facie, it appears that there is a consent agreement between the parties to the proceedings before the Civil Court, whereby, all agreed to have 16 feet wide road in the society where all are residing having respective plots. It further appears from the record that as defendants to the suit having not kept 16 feet distance as agreed between the parties, which led to file the execution proceedings at the instance of the original plaintiffs i.e. respondent No.1 & 2 herein.
7. Further bare reading of an application made by the original plaintiffs below Exh. 78 in execution proceedings, prima-facie suggests that what applicants /plaintiffs want to have 16 feet road between plot Nos.11 & 14 that whatever encroachment made by the plot owner No.11 that can be removed and let there be 16 feet road between plot Nos.11 Page 6 of 9 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:09 IST 2025 NEUTRAL CITATION C/SCA/15981/2013 JUDGMENT DATED: 17/09/2025 undefined & 14, which is at the corner place of the plots in question. Nonetheless, in sub para-2 of Para-3 of the application, the plaintiffs requested the trial Court to issue direction only against defendant No.3 i.e. petitioner and defendant- respondent No.6, but no direction sought for against owner of the plot No.11.
8. The additional affidavit submitted before this Court by the petitioners would prima-facie indicate that owner of plot No.11 was allotted land admeasuring 150.37 sqmts. of land, whereas as per records and so also from the Court Commissioner report would suggest that he is occupying / possessing admeasuring 172.27 of land which is clearly in excess of land what he could possessed / occupied.
9. If such aspect of the matter could have been noticed by the Executing Court while adjudicating the dispute between the parties, the controversy germane between the parties could have resolved in a more effective and satisfactory manner and thereby, there would remain hardly any grievance to subsist between the parties. At this stage, this Court would not like to go much deep into the issue but though it fit to accept the submissions of learned advocates of the parties as regards to the remand of the matter back to the Executing Court.
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10. In light of the aforesaid facts and circumstances and after going through the record of the case, I am of the view that the matter requires to be remanded back to the Executing Court whereby after giving an opportunity of hearing to all parties concerned, more particularly owner of plot No.11 as well as plot No.14 and original plaintiffs, the Executing Court will have to pass fresh order.
11. It goes without saying that all contentions which are so germane from the records are kept open and can be agitated by the parties but no contention as regard the maintainability of the execution proceedings in law will be allowed to be raised by the parties.
12. The Executing Court will have to decide afresh the objections so raised by the petitioners herein and now, may be raised by them and so also any of the plot holders including owner of plot No.11. Thereafter, it shall decide the lis between the parties as per the consent decree passed by the Court concerned.
13. In view of the foregoing discussion and reasons, the impugned order dated 01.10.2013 passed by the 7 th Additional Senior Civil Judge, Surat below Exh.78 in Regular Execution Petition No.27 of 1995 is hereby quashed as set aside. Accordingly, the impugned application filed below Exh.
Page 8 of 9 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:09 IST 2025NEUTRAL CITATION C/SCA/15981/2013 JUDGMENT DATED: 17/09/2025 undefined 78 in the aforesaid Execution Application is restored back on its original file.
14. The Executing Court shall decide all objections and pass necessary order as early as possible preferably on or before three months from the date of receipt of copy of this order.
15. In view of the foregoing conclusion, the present writ application is partly allowed. Interim relief granted earlier, if any, stands vacated forthwith. Rule is made absolute. No order as to costs.
16. The Registry shall issue writ of this order to concern Executing Court forthwith.
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