Gujarat High Court
Bharatkumar Manilal Patel & 3 vs Kantibhai Ramubhai Patel & on 28 November, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/16662/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16662 of 2016
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BHARATKUMAR MANILAL PATEL & 3....Petitioner(s)
Versus
KANTIBHAI RAMUBHAI PATEL & 1....Respondent(s)
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Appearance:
MR.D K.PUJ, ADVOCATE for the Petitioner(s) No. 1 - 4
DHWANI P LAKHANI, CAVEATOR for the Respondent(s) No. 1 - 2
MR PM LAKHANI, CAVEATOR for the Respondent(s) No. 1 - 2
MRS R P LAKHANI, CAVEATOR for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 28/11/2016
ORAL ORDER
1. By way of this petition under Article 227 of the Constitution of India, the petitioners challenge order dated 6.9.2016, whereby the learned Addl. Senior Civil Judge, Olpad rejected the application preferred by the present petitioners below Exh.192 to measure the land of Block No.413 and also measurement of constructions standing on block No.413.
2. Having heard learned advocate Mr. DK Puj for the petitioners and considering the subject matter of the plaint, it appears that the petitioners raised grievance with regard to constructions made by the respondents on plot Nos.1 and 2 and according to the petitioners, the construction over plot Nos.1 and 2 has exceeded its area and construction has been Page 1 of 3 HC-NIC Page 1 of 3 Created On Tue Nov 29 00:43:35 IST 2016 C/SCA/16662/2016 ORDER made on common plot and also on the road without sanctioned plan.
3. By way of present application Exh.192, the petitioners want to get measured entire Block No.413, wherein about 29 plots are existing and owned by different persons. It is a matter of fact that entire Block No.413 is not a subject matter of plaint, but only plot Nos.1 and 2, which belonged to the respondents - defendants, are subject matter of the plaint. No prayer with regard to any measurement of common plot or any construction erected on the road is made subject matter of the present application. Under the circumstances, the application preferred by the petitioners is without any substance and does not cover or relate to the subject matter of the plaint.
4. At this stage, learned advocate Mr. DK Puj for the petitioners has pressed into service decision of the Hon'ble Apex Court in case of Shreepat Vs. Rajendra Prasad reported in JT 2000(7) SC 379, in case of Haryana Waqf Board Vs. Shanti Sarup reported in (2008) 8 SCC 671, in case of Suryanarayana Reddy Vs. Nawab M.D. Kabiruddin Khan (Dead0 By Lrs reported in (2004) 13 SCC 703 and in case of Dalhousie Properties Limited Vs. Surajmull Nagarmull reported in (1977) 1 SCC 367 and the decision of this Hon'ble Court in case of Ramaben Arjanbhai Dangar Vs. State of Gujarat and others reported in 2013(4) GLR 3661. Looking to the principles settled in the case, there is no dispute that when there is a dispute with regard to identity of plot in dispute, the Court may appoint competent person as Court Commissioner. Here, the petitioners - plaintiffs are out to get Page 2 of 3 HC-NIC Page 2 of 3 Created On Tue Nov 29 00:43:35 IST 2016 C/SCA/16662/2016 ORDER measured entire Block No.413, which is not subject matter of the plaint and further, there is no dispute with regard to identity of plot Nos.1 and 2, but there is allegation that the respondents - defendants have encroached upon the common plot area and road. Therefore, said case laws cited at bar are not helpful to the petitioners.
5. In the result, the petition being devoid of merits, both on law and facts, stands dismissed.
(S.H.VORA, J.) shekhar Page 3 of 3 HC-NIC Page 3 of 3 Created On Tue Nov 29 00:43:35 IST 2016