ORAL ORDER
1. The present petition is filed under Article 227 of the Constitution of India by the petitioner-original plaintiff seeking following prayers.
"(A) YOUR LORDHIPS be pleased to issue an appropriate writ, order or direction, quashing and setting aside the order dtd.31.08.2016 passed by the Ld. 7th Additional District Judge, Rajkot at Dhoraji below Ex.18 in Misc. Civil Application No.17/2015, in the interest of justice.
(B) YOUR LORDHIPS be pleased to stay the implementation, execution and operation of the impugned order dtd.31.08.2016 passed by the Ld. 7th Additional District Judge, Rajkot at Dhoraji below Ex.18 in Misc. Civil Appeal No.17/2015, pending the admission, hearing and final disposal of this petition;
(C) ****."
2. Heard learned advocate Mr. Premal S. Rachh for the petitioner and learned advocate Mr. Harnish V. Darji for the respondent Nos.1 and 2.
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3. The brief facts of the case are as under:-
3.1 The petitioner-plaintiff has filed a suit seeking prayers in the nature of declaration and permanent injunction against the defendants for the property bearing Survey No.233 Paiki admeasuring about 2 Acre 31 Gunthas, Survey No.119 admeasuring about 2-08 Gunthas and Survey No.119 admeasuring about 4-00 Gunthas. Exhibit-5 application was granted by the learned trial Court vide order dated 24.11.2015. Being aggrieved and dissatisfied with the impugned order, original defendant Nos.1 and 2 filed Civil Miscellaneous Appeal before learned 7thAdditional District Judge, Dhoraji wherein, learned District Court allowed the appeal on 31.08.2016 and set aside the order dated 24.11.2015 passed below Exhibit-5.
3.2. Being aggrieved and dissatisfied with the impugned judgment and order, petitioner-original plaintiff has filed the present petition.
4. Learned advocate for the petitioner, at the outset, contended
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that by way of family arrangement / distribution deed dated 06.04.1994, the suit properties came to be distributed between the parties to the suit. A revenue entry No.2120 came to be mutated in the revenue records with regard to the family arrangement deed dated 06.04.1994. It is further submitted that the dispute in question with regard to distribution of the ancestral property and Revenue Authorities in Revenue proceedings observed that dispute can be resolved by Civil Court. Therefore, the suit came to be filed by the petitioner. It is further contended that while granting an injunction / prohibitory order against the defendants, learned trial Court has properly appreciated the evidence and granted reliefs in favour of the petitioner. However, learned District Court disturbed the finding and allowed the appeal on the ground that a partition has taken place between the family members of the parties. Resultantly, each son has received their respective shares of land and therefore, there is no prima facie case. The finding of fact has been disturbed by the learned District Judge.
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4.1. It is further contended that the respondents herein have admitted that the petitioner is in the possession of the suit property for more than 20 years. The plaintiff has established that the possession of the suit properties is with the petitioner. There was no justifiable reason to disturb the finding of the learned trial Court. Except above, no submissions are canvassed by learned advocate for the petitioner.
5. Per contra, learned advocate for the respondents has supported the judgment and order passed by learned District Court and contended that there is no prima facie case in favour of the petitioner. It is further contended that learned District Court has observed that the properties have been partitioned amongst the family members pursuant to a deed of distribution / partition and brothers inter se have also distributed their respective shares. The Co-ordinate Bench of this Court vide order dated 22.09.2016 has directed parties to maintain status quo with regard to the land Revenue Survey No.233 Paiki
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admeasuring 2 Acre 31 Gunthas and land bearing Revenue Survey No.119 admeasuring 6 Acre 08 Gunthas and the same is still in force. Except above, no other submissions are canvassed by learned advocate for the respondents.
6. I have considered the submissions canvassed by learned advocates for the parties and the papers placed on record. On perusal of the impugned judgment and order, it appears that the dispute is between the family members and plaintiffs have to get their rights in the suit properties ascertained. It appears from record that an arrangement took place on 06.04.1994 and the defendant Nos.1 and 6 to 9 executed a sale deed without consideration of the land bearing Revenue Survey No.233 paiki admeasuring about 2 acre 31 gunthas. Plaintiffs are claiming to be in possession of the land in question. It appears that the question is with regard to the ancestral property and the partition taken place between the members of the family as per a deed of distribution. Learned District Court has appreciated the documentary evidence and also gone through the family
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arrangement taken place between the parties. The prima facie observation of the learned District Court is that the dispute raised by the plaintiff and the defendants require trial. I also endorse the view expressed by the learned District Court. Pending the present petition, this Court vide order dated 22.09.2016 directed status quo to be maintained by both the parties qua suit properties bearing Revenue Survey No.233 Paiki admeasuring 2 Acre 31 Gunthas and land bearing Revenue Survey No.119 admeasuring 6 Acre 08 Gunthas. The said position of suit properties has been maintained by parties.
7. In view of above observations, the present petition stands rejected as no merit is found. However, the order dated 22.09.2016 passed by the Co-ordinate Bench of this Court is to continue till final disposal of the suit. The order dated 31.08.2016 passed by 7thAdditional District Judge, Rajkot at Dhoraji is hereby upheld.
8. It is needless to observe that all the contentions and rights
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of both the parties are kept open and the observations made hereinabove are tentative so far as the present petition is concerned. Learned trial Court shall decide the controversy strictly on evidence and as per the provisions of law.
9. Either of the parties to the suit may request learned trial Court for the expeditious final hearing of the suit. If any request is made by any of the parties, the learned trial Court may consider such request upon pending of civil cases before him / her.
(D. M. DESAI,J)
RINKU MALI
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