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Judgment
K.A. Puj, J.—The appellants - ori. defendants No. 4 to 9 have filed this Appeal From Order challenging the order passed by the learned 7th Additional Senior Civil Judge & J.M.F.C., Ahmedabad (Rural) below an Application Ex.5 in Special Civil Suit No. 364 of 2007 on 28.2.2008 whereby the learned Civil Judge has allowed the injunction application and ad-interim order passed by him on 26.9.2007 was extended till final disposal of the suit.
This Court has issued notice for final disposal on 15.9.2008.
Heard Mr. A.J. Patel, learned advocate appearing with Mr. Praful J. Bhatt, for the appellants and Mr. R.J. Goswami, learned advocate appearing for the respondents.
It is the case of the appellant that land bearing Survey No. 835 admeasuring about 32476 Sq.Mtrs., of Village : Sola, Taluka : Dascroi, Dist. Ahmedabad belonged to respondent Nos. 5 to 7. They are legal heirs and representative of late Shri Bothaji Visaji Thakore. The grand-father of respondent Nos. 5 to 7 i.e. father of Shri Bothaji Visaji Thakore, late Shri Visaji Gobarji Thakore was cultivating the land in question as a ''pagi''. It is so stated in the revenue record. It appears from the family tree that Shri Visaji Thakore was survived by two sons, namely, Shri Bothaji Thakore and Shri Kanaji Thakore. Shri Visaji Thakore died in 1932 whereas Shri Bothaji died in 1978 and Shri Kanaji Thakore died later. Shri Kanaji Thakore is survived by five heirs and legal representatives and Shri Bothaji Thakore is survived by two daughters, one son and a wife. Later on his wife also expired. The heirs and legal representatives of Shri Bothaji Thakore are Shri Sataji Thakore, Bhikhiben Thakore and Santokben, the respondent Nos. 5 to 7 and original defendant Nos. 1 to 3 in the suit.
It is also the case of appellant that the land in question continued to be in the name of Shri Bothaji right from 1932 and after his death it continued in the name of respondent Nos. 5 to 7. An entry to that effect being Entry No. 101 effected on 6.5.1932 and duly certified clearly shows that the name of Shri Bothaji was entered into revenue record in 1932. On death of Shri Bothaji in the year 1978, entries were effected in revenue record in favour of respondent Nos. 5 to 7. The heirs of another son of Shri Visaji i.e. Heirs of Shri Kanaji have given a declaration that they received their part of contribution.
It is also the case of the appellant on the basis of above documentary evidence that at no point of time, the respondent Nos. 1 to 4 / ori. plaintiffs, who are second cousin of respondent Nos. 5 to 7 nor their great grand-father ever possessed this land. Their names never appeared in revenue record. Despite the fact that there is no single piece of documentary evidence, they have filed the suit after the appellants purchased the suit land in 2003. It is true that there is a dispute pending before the revenue authorities in respect of characteristic of the lands as to whether the land is old tenure or new tenure. The respondent Nos. 1 to 4 have nothing to do with this dispute. If the land is found to be of new tenure, the Government would be entitled to have premium before the sale of land and if the land is not found to be new tenure the Government would not be able to get anything by way of premium. Despite this fact, the learned trial Judge ignoring the documentary evidence, went on referring to the pendency of revenue proceedings with which the plaintiffs or the appellants have no concern whatsoever. The proceedings before the revenue authorities are of different nature. They have nothing to do with granting of injunction in favour of the plaintiffs when they themselves have no documentary evidence on any other evidence which would justify the order of interim injunction.
Mr. A.J. Patel, learned advocate appearing for the appellants have submitted that the property was in possession and occupation of the respondents No. 5 to 7 and from them the appellants have purchased the property. The present respondent Nos. 5 to 7 or their fore-fathers have never claimed their ownership, title or right over the property and there is no documentary evidence to that effect. Only with a view to extort money from the appellants a false suit was filed before the trial Court. He has, therefore, submitted that in absence of any documentary evidence or in absence of possession the order passed by the trial Court granting status-quo in favour of the respondents is required to be vacated. He has also submitted that the revenue records and the records of right clearly show the name of the present appellants and they are continued to be in possession of the said land. He has, therefore, submitted that there is no basis for the trial Court to arrive at conclusion that the property is ancestral property and interest of the plaintiffs is required to be protected.
Mr. R.J.Goswami, learned advocate appearing for the respondents ori. plaintiffs, on the other hand, submitted that the property being the ancestral property the learned trial Judge has rightly granted order of status-quo. He has further submitted that the entry does not give any title over the property and the competent Civil Court is seized with the matter and till the rights of the parties are decided by the Civil Court the order of status-quo granted by the trial Court should not be vacated. He has further submitted that the panchnama of the property was drawn way back on 2.10.2007 and as per the said panchnama the plaintiffs are cultivating the said land and the land is in their possession. He has, therefore, submitted that no interference in the order passed by the trial Court is called for.
Having heard the learned advocates for the parties and having considered the rival submissions the Court is of the view that the trial Court has committed an error in granting the order of status-quo. The property in question is in exclusive possession of the defendants No. 1 to 3 from whom the defendants No. 4 to 9 have purchased the property by Registered Sale Deed. It is also relevant to note that the dispute referred to by the trial Court in the impugned order with regard to the nature of land whether it is old tenure or new tenure has no relevance with the possession of the defendants No. 1 to 3 as the said dispute is between the defendants and the State Government and if at all, ultimately, it is to be held that it is new tenure land the purchasers / present appellants are supposed to pay premium on the said land. The respondent Nos. 1 to 3 will have to establish their possession showing documentary evidence and that they have ownership right over the property. The entries of 1932 and 1978 clearly indicate that the respondent Nos. 1 to 4 have no right over the property. Even if it is assumed that the revenue entry does not confer any ownership right or any title over the property, in that case also the respondent Nos. 1 to 4 have to satisfy the Court by leading certain documentary evidence as to whether they have any right, title or interest over the property or they are having the possession. On both the counts, the respondent Nos. 1 to 4 fail and no documentary evidence is produced to that effect. The trial Court has clearly committed an error in observing that the property in question was ancestral property. Simply because the property was ancestral property once upon a time, and subsequently in 1932 and in 1978 property changed its hands and it becomes exclusive right of the respondent Nos. 5 to 7, in that case, it cannot be said to be an ancestral property.
In the above view of the matter, the present appellants are in lawful possession by virtue of the Registered Sale Deed executed in their favour and since they are holding possession of the property at present, the injunction granted by the trial Court against them cannot be upheld and accordingly the said injunction is hereby vacated. The Appeal is accordingly allowed.
Since the Appeal is allowed the Civil Application no longer survives and it is accordingly disposed off.
It is, however, made clear that all these observations made herein are of prima facie nature and at the time of disposal of the suit the learned trial Judge will decide the same on the basis of evidence oral as well as documentary evidence that may be led by the parties before him and without being influenced by the order passed by him as well as the order of this Court.
Subject to these observations this Appeal as well as Civil Application are accordingly disposed off.