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2016 DIGILAW 355 (GUJ)

Bhagwatsinh Bhavsinh Gohil v. Kachraji Babuji Thakore & 14

2016-02-15

R.D.KOTHARI

body2016
ORDER R.D KOTHARI, J.:— This matter was argued at some length. During the course of hearing, learned Senior Counsel appearing for the respective parties have arrived at consensus. Instead of testing the order under challenge on merits, this Appeal from Order can be disposed of by issuing suitable directions in terms of consensus arrived at. In order to appreciate the direction, what is subject matter i.e broadly what is suit land may be stated; 1.1 The suit land is situated at village Chandkheda, District - Gandhinagar. It is a part of Survey No. 78. The appellant - original plaintiff claims to have purchased the land admeasuring 4756 sq. mtrs. Total area of land is purchased by another respondent. He is defendant No. 15 in the suit. He has purchased 15,682/- sq. mtrs. of land of Survey No. 78. Upon purchasing the property, defendant No. 15 has applied for conversion into N.A and authority has passed a conditional order of permission. Condition is to pay premium amount. In the present suit, the original owner and other purchasers are the defendants. 2. The present Appeal from Order as also the Civil Application No. 7985 of 2014 stand disposed of with following directions: (a) The respondents shall not create any third party interest and shall not use the FSI pertaining to the land admeasuring 4756 sq. mtrs. nor shall get any plan approved showing the said area of land as available to them for construction nor shall show the said land as common area available for construction on other land till the final disposal of the suit. (b) Subject to above direction in Para. (a), it would be open for the respondent No. 15 to deal with the remaining land i.e 10,926 sq. mtrs. as per his choice and wish and no restrictive order qua that part of land. (c) It would also be open for respondent No. 15 to pay premium to the State Government for the entire land. For payment of such premium of the land in question, the present order will not come in the way of the respondents. The authority shall accept the premium if respondent No. 15 tenders the same. It is clarified that if ultimately the suit came to be decreed then, the present appellant will reimburse the respondent No. 15 qua 4756 sq. mtrs. The authority shall accept the premium if respondent No. 15 tenders the same. It is clarified that if ultimately the suit came to be decreed then, the present appellant will reimburse the respondent No. 15 qua 4756 sq. mtrs. of land by paying the proportionate premium amount with 9% interest from the date of actual payment of premium by respondent No. 15 till the payment is made. (d) If ultimately the suit came to be decreed and such proportionate premium amount with interest is paid by the appellant to the respondent No. 15 then, premium as to the said land i.e 4756 sq. mtrs. shall be deemed to have been paid by the appellant - original plaintiff for all the purposes. In case the suit came to be dismissed, no question of payment of premium by the plaintiff. (e) It is clarified that this direction for payment of premium shall not entitle either party to claim any equity qua each other. The parties have agreed that neither party will raise any contention against each other on the basis of this arrangement of payment of premium. (f) It was submitted at the time of passing of this order that pleadings are completed in the suit i.e Special Civil Suit No. 13 of 2008 and issues are yet to be framed. Learned advocates for the parties appearing before the trial court may submit the suggested issues to the trial court at the earliest. Since I propose to pass an order of time bound direction to dispose of the suit it is expected that learned advocates for the parties would help the trial court by submitting suggested issues. Thereafter, the trial court shall frame the issues expeditiously. (g) Upon framing of the issues, with the aid and cooperation of learned advocates for the parties, the trial court shall expeditiously record the evidence. Thereafter, the trial court, with the aid and cooperation of learned advocates for the parties, shall dispose of the suit on or before 30.6.2016 (h) At the time of passing of this order, attention was drawn to a decision of the Supreme Court in case of Maria Margardia Sequeria Fernandes v. Erasmo Jack de Sequeria (Dead) through LRs, reported in (2012) 5 SCC 370 . In view of this decision, it is hereby directed that in case the suit i.e Special Civil Suit No. 13 of 2008 came to be dismissed by the trial court, it would be open for the trial court to pass appropriate orders for damages and loss of profit and cost also against the present plaintiff. It goes without saying that such order, if required to be passed, parties would be heard and it would be open for the parties to raised all available contentions. (i) Liberty to revive in case of difficulty.