Ravjibhai Bhavanbhai Ganodiya vs Nirmalaben Jagabhai Ganodiya and Others

S.G. Shah, J.—Admit. Mr. Shakti Jadeja, Ld. Advocate waives service of notice of admission for the respondents.

The appellant is original plaintiff, whereas the respondents are original defendants in Special Civil Suit No. 17/2014 filed in the Court of 2nd Addl. Senior Civil Judge, Gondal [for short ''the trial Court'']. Hence they are referred to as per their original nomenclature.

The plaintiff has preferred an application for interim relief in such suit so as to restrain the defendants from transferring or alienating the suit property in any manner and to enter into the suit property and thereby to protect his possession. By impugned judgment and order dated 11/6/2014 the trial Court has rejected such prayer. The plaintiff is real uncle of the defendants and the dispute is pertaining to only two survey numbers being agricultural land of village Gundala in Gondal Taluka i.e. old survey No. 104, which is renumbered as survey No. 106 and survey No. 212/2.

The plaintiff''s case is to the effect that his father Bhavanbhai Ramabhai was holding several agricultural lands including the land of above two survey numbers and as per oral arrangement of partition, these two survey numbers came to his ownership and possession; whereas survey No. 199/2 went to the share of the father of the defendants, who is his brother. However, because of several social and personal difficulties and when he was not keeping well, the land was not transferred in his name and had remained in the name of Jagabhai Bhavanbhai i.e., father of the defendants and, therefore, now the defendants are trying to snatch away the ownership and possession of such land from him being legal heirs of his brother Jagabhai Bhavanbhai. It is his case that in fact during revenue proceedings, it has been confirmed and decided finally that these survey numbers came to his share with his mother and such entries were confirmed before 30 years i.e., in the year 1982-83. He is also relying upon the pleadings by the defendants in revenue Appeal No. 12/2013 filed by the defendants before the Deputy Collector of Gondal, wherein they have categorically stated that at the relevant time they were minors and, therefore, properties in question were managed and cultivated by the plaintiff.

As against that, the defendants have resisted the suit contending that they are real owners being legal heirs and successors of Jagabhai Bhavanbhai and as per the revenue entries, after the death of Jagabhai, they became absolute owners, but since the properties were managed by the plaintiff, he has got it transferred illegally in his name taking disadvantage of the situation that the defendants are initially minors and after their marriage, they had gone to the house of their in-laws. Therefore, they have also initiated revenue proceedings which are pending and, therefore, they have submitted that since the plaintiff does not have right over the suit properties, the injunction cannot be granted as prayed for.

I have heard learned advocates for both the sides at length and perused the record as well as relevant documents produced by both the sides which include copies of revenue entry Nos. 912 dated 16/10/1979, 984 dated 12/6/1982, 1001 dated 30/4/2013 and 2597 dated 4/7/2006. The defendants have also produced the judgment rendered in Appeal No. 12/2013 dated 11/2/2014 whereby the Deputy Collector has cancelled the entry Nos. 1001 and 984 directing to re-enter the names of the heirs of Jagabhai Bhavanbhai. Thereby because of such entry, now it becomes clear that entry in favour of the plaintiff was not proper and, therefore, there would be new entry in record of rights.

In view of factual details stated hereinabove and that emerges from the record, it becomes clear that there is a dispute amongst family members regarding ancestral properties for which revenue proceedings are going on and through the revenue entries do not confirm the right of the ownership finally when the plaintiff is claiming right over some property based upon oral family settlement only, at such interim stage it would be inappropriate to discuss and determine right of either party which can be confirmed only after proper evidence is adduced by all the parties and scrutinized judiciously by the trial Court.

I have also perused the impugned judgment wherein the trial Court has taken care of all facts in detail as well as decisions cited before it. However, when the trial Court has presupposed and predetermined that the plaintiff has no case whatsoever, such determination may be considered only for confirming the ownership and not for the possession inasmuch as though the defendants are disputing the plaintiff''s possession, it seems that possession is with the plaintiff, which in fact can be confirmed from the revenue record also wherein possession of plaintiff is shown as a cultivator. Though the defendants are not admitting their pleadings in revenue appeal as their admission regarding possession, it becomes clear that the defendants themselves have pleaded in revenue Court in revenue appeal that the properties were being maintained by the plaintiff and therefore it can certainly be presumed that the possession is with the plaintiff. Therefore, to that extent, the impugned order requires to be modified so as to protect the possession of the plaintiff.

So far as the issue regarding possession is concerned, it would be appropriate to recollect the decisions between Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. and others, and Sudhir Jaggi and Another Vs. Sunil Akash Sinha Choudhury and Others, . Both these judgments of the Hon''ble Supreme Court reconfirmed the settled legal position that person cannot be dispossessed without following due process of law either he is a tenant or he is in possession because of agreement to sell or by any other reason.

Thereby, if at all defendants are of the opinion that the plaintiff is not entitled to the possession because of the revenue proceedings, they are free to initiate appropriate proceedings for getting the possession if they are able to prove their ownership and possession of the plaintiff as care taker since they were minors at the relevant time. However, so far as possession of the plaintiff is concerned, it is required to be protected at such stage. I have avoided to discuss the factual details regarding revenue proceedings and issue regarding ownership, considering the fact that it is yet to be proved by both the sides by adducing proper evidence in the trial Court and, therefore, discussion on this issue would unnecessarily prejudice the trial. However, it is made clear that both the parties are at liberty to seek modification of such final order under Order 39 Rule 4 of the Code of Civil Procedure before the trial Court after final outcome of revenue proceedings.

In view of the above facts and circumstances, the impugned order needs to be quashed and set aside so as to modify it in following terms:

"I The respondents - defendants are hereby restrained from taking the possession of the suit properties without following due process of law.

The appeal is partly allowed to the aforesaid extent.

In view of above, civil application stands disposed of accordingly."