Sadrudin Nuralibhai Kotadiya vs Ashish @ Bhadabhai Nathabhai Khaniya

Gita Gopi, J

Heard Mr. Mohammed Musaib M.Shaikh, learned advocate for the appellant and Mr. Deepak N.Khanchandani, learned advocate for the respondent.

Advocate Mr. Shaikh submits that the defendant of the suit is a third party, where he has no connection whatsoever to the suit property. He submits that the plaintiff being the owner had filed the suit for declaration and injunction. Advocate Mr. Shaikh submitted that the defendant has been causing damage to the standing crop in his field with intention to encroach upon the agricultural land.

Advocate Mr. Shaikh submitted that by way of sale deed, his brother had sold the property to one Jignasha D/o Kanchanben Mepabhai Makwana W/o. Manharbhai Khaniya, and the learned 3rd Additional Senior Civil Judge, Junagadh on 29.05.2023 rejected the injunction application, Exhibit-5, on the ground that the original owner of Survey No.42, Jignasha D/o Kanchanben Mepabhai Makwana W/o. Manharbhai Khaniya, has not been joined in the suit.

Advocate Mr. Shaikh submitted that the learned Judge has also observed that Jignasha D/o. Kanchanben Mepabhai Makwana W/o. Manharbhai Khaniya, had given an application for resurvey-measurement. Mr. Shaikh further submitted that the Court Commissioner has brought the record at mark-14/3 to reflect that on Survey No.43, there is standing crop of the plaintiff, where there is a threat from the side of the present defendant, who too encroached upon the land and even damaged the standing crop.

Countering the argument, Mr. Deepak N.Khanchandani submitted that the injunction application has been rightly rejected since the proper and necessary party has not been joined in the suit. Advocate Mr. Khanchandani submitted that it is the duty of the plaintiff to show the exact measurement of his land and without necessary details and further particulars, the relief cannot be granted.

In this Suit, as per the fact, Survey No.42 has been sold by the brother of the plaintiff to Jignasha D/o. Kanchanben Mepabhai Makwana W/o. Manharbhai Khaniya. Prior to purchase of the land, it would have been necessary for Jignasha D/o. Kanchanben Mepabhai Makwana W/o. Manharbhai Khaniya to have got the actual measurement of the land. The defendant herein has no connection whatsoever with the suit land in question, and nothing has come on record of any right of the defendant on the adjacent land, which is Survey No.42.

In view of the same, relief in terms of para-9 of Exhibit-5 is granted.

The present Appeal From Order stands disposed of accordingly. The observations made hereinabove would not influence the trial Court Judge while deciding the Suit on merits.