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2022 DIGILAW 1430 (GUJ)

Savjibhai Korat Trust Thro Trustee Jasumatiben Savjibhai Korat v. Jetpur Gymkhana

2022-10-18

UMESH A.TRIVEDI

body2022
ORDER : 1. Since both these petitions arise out of different orders passed by the Court in the same suit, they are proposed to be disposed of by way of this common order. 2. Special Civil Application No.15508 of 2013 is filed by the petitioners-defendants challenging an order passed below Exh.5 and 23 in Regular Civil Suit No.21 of 2013 by the learned Principal Civil Judge, Jetpur dated 30.7.2013 whereby, Exh. 5 application came to be allowed and mandatory injunction was granted directing petitioners – defendants to remove the disputed constructed wall at their own cost and risk and to file affidavit to that effect before the Court and if they fail to do so, the plaintiff is authorized to remove the same at his cost and recover the same from the defendants. At the same time, by specific injunction order, petitioners – defendants were restrained from making any construction or creating any wall at the disputed site. At the same time, since the said order is also confirmed by the appellate Court rejecting Misc. Civil Appeal No.3 of 2013 by the Additional District Judge, Jetpur, petitioners have preferred this petition under Article 227 of the Constitution of India, challenging both the orders passed by the trial Court and confirmed by the appellate Court. 3. By filing Special Civil Application No.15571 of 2013, the petitioners – defendants have challenged the order passed below Exh.16 in aforesaid Regular Civil Suit No.21 of 2013 by Principal Civil Judge, Jetpur dated 30.7.2013 whereby request made by them to join the Collector, Rajkot as defendant in the suit under Order I Rule 10 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) as also under Section 151 of ‘the Code’, which came to be rejected. 4. Respondent – original plaintiff filed the aforesaid suit before the Court of Principal Civil Judge, Jetpur against the petitioners- defendants seeking declaration to the effect that, the defendants have no right, title or interest in erecting poles in their land in between the Court building and shopping center and they are obliged to remove the same. Plaintiff has further sought for a declaration and permanent injunction to the effect that, neither the defendants nor their servants, agents, etc. Plaintiff has further sought for a declaration and permanent injunction to the effect that, neither the defendants nor their servants, agents, etc. have any right to construct a wall on the northern side of a Court building and southern side of plaintiff's shopping center and to permanently restrain them putting up such construction, perpetual injunction thereof was claimed in the suit. At the time of filing the suit, the respondent – plaintiff applied for injunction vide Exh.5 application restraining defendants, their servants, agents, etc. not to construct or create any wall in between northern side of Court building and southern side of shopping center of the plaintiff. However, Court issued urgent show cause notice making it returnable after 3 days thereof i.e. 18.5.2013. On the day of filing of the suit and injunction application, respondent – plaintiff requested the Court to appoint the Court Commissioner to draw a panchnama and rough sketch of the suit property for the judicious disposal of the dispute between the parties vide an application Exh.6 on 15.5.2013 itself. The said application came to be granted and pursuant thereto, the Court Commissioner was appointed and he drew a panchnama on 16.5.2013, which bears signature of not only the plaintiff but of the defendant No.2 in the suit who appears to be one of the trustees of the family trust, which administers hospital entrusted by the State Government. The said panchnama drawn by the Court Commissioner along with map was produced vide Mark 9/1 and 9/2 before the Court. However, despite notice for the hearing of Exh.5 and drawing a panchnama is served and petitioners-defendants were aware of the suit, it is alleged that they constructed wall overnight obstructing easy ingress and outgress for the use of properties of the plaintiff, which they owned and possessed. Therefore, the respondent-plaintiff had to apply again on 18.5.2013 vide Exh.12 application to again draw a panchnama of very same site, which was kept for reply and hearing and ultimately, it came to be granted on 21.5.2013. The respondent-plaintiff with D.E. list dated 18.5.2013 produced three photographs in original of the disputed site reflecting that there was no wall constructed as on the date of filing of the suit. The respondent-plaintiff with D.E. list dated 18.5.2013 produced three photographs in original of the disputed site reflecting that there was no wall constructed as on the date of filing of the suit. On that very day, i.e. 21.5.2013, the petitioners – defendants vide an application Exh.16 requested the Court to join Collector, Rajkot as party defendant in the suit as for the suit land there are orders by Collector, Rajkot and said orders have been used before the Court and therefore, Collector, Rajkot is required to be joined as party defendant being necessary and interested party to be joined. However pursuant to an order dated 21.5.2013, appointing again Court Commissioner and directing him to draw a panchnama as also map, the Court Commissioner on 25.5.2013 drawn the panchnama as also map reflecting that the petitioners– defendants have created 6 feet height wall and 68 feet 10 inch east- west length in between the northern side of Court building and southern side of shopping center of the plaintiff for which an injunction was asked for, which was not there when the first panchnama was drawn and since Court had not granted ex-parte injunction the said wall is alleged to be constructed overnight after the drawing of the first panchnama. 5. Ms.Kruti Shah, learned advocate for the petitioners – defendants in the suit in support of her Special Civil Application No.15571 of 2013 challenging order whereby Court rejected the request to join Collector, Rajkot as party defendant in the suit at the instance of defendants, submitted that in respect of the suit land, there are orders passed by Collector, Rajkot. It is further submitted that such orders are also used before the Court in respect of the suit land. Therefore, according to her submission, Collector, Rajkot is necessary as also the interested party to be joined in the suit as defendant. 6. It is further submitted that in a document Mark 3/1 produced in support of a plaint, by the respondent-plaintiff. Therefore, according to her submission, Collector, Rajkot is necessary as also the interested party to be joined in the suit as defendant. 6. It is further submitted that in a document Mark 3/1 produced in support of a plaint, by the respondent-plaintiff. the City Survey No.2098 and City Survey No.2096, which are property cards, where the City Survey No.2096 stands in the name of the Government and refers about the orders passed by Collector and it has been pressed into service in the pleadings before any evidence is started and interest of the Collector, on behalf of the State, is involved in it and the Court cannot determine the lis between the parties in absence thereof, he is required to be joined as party defendant in the suit. She has relied on the decisions, which were cited before the trial Court in support of her application Exh.16, relied on here also without citing those decisions. Therefore, she has submitted that Collector, Rajkot being necessary and proper party to be joined in the suit to decide the lis between the parties and therefore, this petition is required to be allowed. 7. As against that, Mr.Mehul Shah, Senior Advocate, learned counsel assisted by Mr.Samee Uraizee, learned advocate for the respondent – plaintiff submitted that such application appears to have been filed with a view to delay the proceedings. It is further submitted that the prayer made in application Exh.16 is beyond the scope of Order I Rule 10 of ‘the Code’. It is further submitted that the suit land for which suit is filed is of the ownership and possession of the respondent-plaintiff and there is no interest of Government involved in it and therefore, Collector is neither a necessary nor a proper party to be joined. It is further submitted, issues which are involved in the suit, can be determined even in absence of Collector, Rajkot as prayed for by the petitioners – defendants. It is further submitted that by an order dated 25.5.1972 in a Remand Case No.67/70, City Survey Superintendent had declared the respondent – plaintiff as owner and occupier of the suit property and therefore, property card reflects the name of the respondent - plaintiff. Out of such land, which was owned and occupied by the respondent – plaintiff, 2494.32 Sq.Mtrs. It is further submitted that by an order dated 25.5.1972 in a Remand Case No.67/70, City Survey Superintendent had declared the respondent – plaintiff as owner and occupier of the suit property and therefore, property card reflects the name of the respondent - plaintiff. Out of such land, which was owned and occupied by the respondent – plaintiff, 2494.32 Sq.Mtrs. of land came to be resumed by the State and with donation of the donors, the Hospital was constructed and run by the State and the administration of which was entrusted to the petitioners – defendants on their request for that part of the land, in the year 2010. Therefore, according to the submission of learned counsel for the respondent –plaintiff instead of proceeding with the hearing of Exh.5 application, with a view to delay the hearing thereof, the petitioners – defendants have come out with such a frivolous application and therefore, it is required to be rejected and it is rightly rejected by the trial Court. It is further submitted that plaintiff is master of his own case and he may join party defendant in the suit and when he is not desirous to join Collector, Rajkot as defendant in the suit, it cannot be ordered by the Court, that too, at the instance of the petitioners-defendants when he is neither necessary nor a proper party to be joined. On the aforesaid submissions, learned advocate for the respondent –plaintiff has requested that this Special Civil Application No.15571 of 2013 is required to be rejected. 8. Having heard the learned advocates for the appearing parties and going through the impugned order as also documents annexed with the petition provided by the learned advocate for the respondent –plaintiff, it emerges that suit is filed by Respondent-plaintiff praying for declaration and permanent injunction restraining the petitioners – defendants from constructing any wall, that too, in the land owned, occupied and possessed by the respondent-plaintiff and except two parties, no other person is required to be joined, as dispute is in between them. 9. The whole basis on which petitioners-defendants pray for joining Collector, Rajkot as a party defendant is on the ground that for the suit land, there are orders passed by Collector, Rajkot and said orders are utilized by the parties before the Court. 9. The whole basis on which petitioners-defendants pray for joining Collector, Rajkot as a party defendant is on the ground that for the suit land, there are orders passed by Collector, Rajkot and said orders are utilized by the parties before the Court. It is not the case of the petitioners – defendants that in absence of Collector, Rajkot as a party to the suit, no lis between the parties can be determined. It is further clear that even if Collector, Rajkot is not joined as party defendant in the suit, the Court is able to pronounce the judgment and decree. Referring document Mark 29/2, which is produced at page 124 of the compilation provided by the respondent-plaintiff, the learned advocate for the petitioners – defendants submitted that City Survey Officer, Jetpur had held respondent – plaintiff to be the occupier of land admeasuring 27360.62 Sq,Mtrs. of land of City Survey No.2098. As coming out from the plaint itself, it is clear that vide document No.68 dated 15.5.1933, land was allotted to the respondent – plaintiff to use it as play ground, leisure walk by the then Bilkha State. Thus, so far as ownership and possession of the said portion of land is concerned, where disputed wall is created by the petitioners – defendants, was granted by the then State and document to that effect, is also produced at page No.126 of the compilation. From the said deed, it appears that terms and conditions of original grant by the Bilkha State came to be modified. In the earlier order of grant, the Bilkha State had a right to resume the said land, which has now been removed by the Deed No.68 dated 30.12.1933. The said deed reflects that initially said land was granted to Jetpur Gymkhana on 6.4.1908 and since it was required for the use by the then State as per Section 8 in the said deed, the then State informed the Jetpur Gymkhana to resume the said land. However, in that respect, there was ultimately compromise entered into between State and Gymkhana committee on 23.3.1931. The constructed property out of 10 Acres and 23 Gunthas of land was resumed by the then State and rest of the land ad-measuring 7 Acres and 12 and ½ Gunathas were ordered to be retained as owner by the Jetpur Gymkhana. However, in that respect, there was ultimately compromise entered into between State and Gymkhana committee on 23.3.1931. The constructed property out of 10 Acres and 23 Gunthas of land was resumed by the then State and rest of the land ad-measuring 7 Acres and 12 and ½ Gunathas were ordered to be retained as owner by the Jetpur Gymkhana. Therefore, a new deed came to be executed on 30.12.1933 and the said land was to be retained by the Gymkhana for the use by public also. In short, there appears no dispute, if not of ownership, but of the possession of the suit property whereon a wall is constructed by the petitioners – defendants, that too, after the notice of a suit was served, panchnama through commissioner is drawn, which was required to be kept for the public use as occupied by the respondent – plaintiff Gymkhana. 10. From the copies of property card produced and for which there is no dispute in between the parties, 2494.32 Sq,Mtrs. of land, which has been assigned the City Survey No.2096 resumed from the Jetpur Gymkhana out of 7 Acres and 12 and ½ Gunthas of land, as recorded in property card. The said land was earmarked after resumption as maternity home and it was held to be occupied by the State. It appears that earlier the said land was utilized as Vakil Shri Jivrajbhai and Kahandasbhai Kothari Maternity Home and the administration thereof is entrusted by the State Government vide order dated 9.12,2013 to the Trust known as late Shri Savjibhai Korat Kalyankari Mandal, Jetpur, which was given to it initially for a period of one year vide order dated 3.12.2010 and vide aforesaid order dated 9.12.2013, the administration thereof was further entrusted to the petitioners – defendants for a period of 10 years on the same terms and conditions on which it was initially granted for a period of one year. 11. Thus, there appears no dispute with regard to possession of the land either by the petitioners – defendants of 2494.32 sq.mtrs. and of respondent-plaintiff of remaining land. From the aforesaid documents one thing is certain that, Jetpur Gymkhana i.e respondent – plaintiff is the owner and occupier of the suit land whereas petitioners – defendants are occupying and administering the maternity home to the extent of 2494.32 Sq. and of respondent-plaintiff of remaining land. From the aforesaid documents one thing is certain that, Jetpur Gymkhana i.e respondent – plaintiff is the owner and occupier of the suit land whereas petitioners – defendants are occupying and administering the maternity home to the extent of 2494.32 Sq. mtrs of land out of the very same property but different survey number was given to it. Thus, there is no question of Collector, Rajkot being necessary or a proper party, that too, for a determination of dispute in respect of suit land for which there is no controversy at all without which Court is not able to determine the suit itself. 12. At any rate, the claim made by the petitioners – defendants that orders of Collector, Rajkot are being used before the Court will not lead to a presumption that he is a necessary and proper party to be joined in a suit, that too, at the instance of the petitioners-defendants. The attempts on behalf of the petitioners-defendants appears to be prolonging the hearing and conclusion of the suit by such application, which was at initial stage to halt the hearing of Exh.5 application. 13. At any rate, petitioners – defendants have failed to show how and in what manner Collector, Rajkot is either a necessary or a proper party to be joined in the suit for a just decision of the case. Therefore, I see no reason to entertain Special Civil Application No.15571 of 2013 while exercising jurisdiction under Article 227 of the Constitution of India, and therefore, it is hereby rejected. Notice discharged. 14. Now, coming to Special Civil Application No.15508 of 2013, Ms.Kruti Shah, learned advocate for the petitioners – defendants submitted that the order passed by the trial Court as also confirmed by the appellate Court is erroneous, illegal and requires to be interfered with. She has further submitted that neither from the plaint nor from the documents annexed with it, the respondent –plaintiff has failed to prove the ownership of the suit land and when order granting land to it is not produced, the trial Court could not have passed an order of injunction, as prayed for, as also mandatory injunction as sought for vide Exh.23 to remove the disputed wall, which was constructed after filing of the suit despite knowledge about the matter being sub-judice. 15. 15. She has further submitted that since the respondent-plaintiff has failed to prove ownership and possession of the property whereon a wall is constructed, there could not have been any injunction, much less, mandatory injunction of removal of a wall constructed over the same. Drawing attention of the Court to the impugned order passed by the trial Court, she has submitted that first of all there has to be a finding that the disputed wall is constructed over the land owned and occupied by the respondent – plaintiff and then only, such mandatory order could have been passed by the trial Court and confirmed by the appellate Court. She has further submitted that the trial Court has passed mandatory order by way of injunction to remove the wall constructed pending the suit and hearing Exh.5 application with a predetermined mind without deciding the said application on merit and therefore, the impugned order passed by the Court below Exh.5 and 23 dated 30.7.2013 by Principal Civil Judge, Jetpur in Regular Civil Suit No.21 of 2013 is required to be quashed and set aside. 16. It is further submitted, relying on a written arguments tendered for the decision of Exh.5 application, that the petitioners – defendants is using the said land since 1969 and petitioners – defendants claim ownership by adverse possession. It is further submitted that since it is admitted fact with regard to ownership by adverse possession, therefore, ownership of the suit land is not required to be determined. She has further submitted that there should not be any mandatory injunction for removal of the disputed wall and and till the suit is finally determined, a fair chance has to be given to the litigant i.e. petitioners – defendants. She has further submitted that the impugned order passed below Exh.5 and 23 by the trial Court is not on merit but only with a biased mind as learned Judge concluded that petitioners – defendants have overreached the process of Court and constructed the wall overnight despite they were served with the notice of the suit, in total disregard of Court proceedings. She has further submitted that according to the petitioners – defendants disputed wall is not constructed at the place owned and occupied by the respondent – plaintiff and therefore, no such injunction order, that too, mandatory in nature, could have been passed. She has further submitted that according to the petitioners – defendants disputed wall is not constructed at the place owned and occupied by the respondent – plaintiff and therefore, no such injunction order, that too, mandatory in nature, could have been passed. She has further submitted that she relies on decisions relied by the learned advocate defending the petitioners – defendants and mentioned it in para 5 of the impugned decision in support of this petition. However, as recorded in para-5 of the impugned judgment and order those citations have been referred in the written submissions only and not produced and pleaded and therefore, no detailed discussion was undertaken by the trial Court. On the aforesaid submissions, learned advocate for the petitioners – defendants submitted that impugned order requires interference by admitting and allowing this petition. 17. As against that, Mr.Mehul Shah, Senior Advocate, learned counsel assisted by Mr.Samee Uraizee, learned advocate for the respondent – plaintiff submitted that from the assertion in the plaint as also documents produced and relied on by the parties including petitioners-defendants, there is no escape from conclusion that not only of the suit land, but the land occupied by the petitioners – defendants, it was of the ownership of respondent –plaintiff. However, part of that land belonging to the respondent-plaintiff, Government resumed 2494.32 sq.mtrs. of land for constructing and administering a maternity home and then built over the said land a maternity home with the donation of donors, whose names are also attached with the said maternity home. It is further submitted that the administration alone of that portion of land where maternity home is established by the donors has come to be granted in favour of petitioners– defendants’ Trust, that too, in the year 2010 only for a period of one year and thereafter, in the year 2013, administration thereof was extended for a further period of 10 years. Therefore, according to the submission of learned counsel for the respondent – plaintiff, the land where hospital / maternity home is being run belongs to State Government and administration thereof only entrusted to the petitioners – defendants. Therefore, according to the submission of learned counsel for the respondent – plaintiff, the land where hospital / maternity home is being run belongs to State Government and administration thereof only entrusted to the petitioners – defendants. He has further submitted that because of the disputes in between the parties, this Court constrained to pass an order dated 1.3.2017 appointing Court Commissioner for the measurement of Survey No. 2096, which is of the ownership of the State Government and administration of the maternity home built over the same, which is entrusted to the petitioners – defendants. For the purpose, this Court passed order on 1.3.2017 reads as under: “The Principal District Judge, Rajkot, is hereby directed to appoint the Court Commissioner for the measurement of Survey No.2096 of Jetpur City, District – Rajkot. The Commissioner shall prepare a map and specifically states that whether the disputed wall has been constructed beyond land acquired by the Collector for Maternity home. The District Collector is also hereby directed to depute responsible officer from Land Revenue Office of the District. The amount of Rs.5000/- shall be paid by the petitioner for the expenses. The amount shall be deposited within a period of one week from today before the learned Trial Court. Copy of this order shall be handed over to the Assistant Government Pleader, Mr. Alpesh Bhatt. A copy of this order shall be forwarded to Principal District Judge, Rajkot. S.O. to 06.04.2017”. 18. Pursuant to the said order, the Court Commissioner appointed and a panchnama along with map came to be drawn with measurement of whole City Survey No.2096, which is also produced by the Court Commissioner along with his panchnama and map in this proceedings. Drawing attention to the said panchnama and map, it is submitted, the petitioners – defendants are occupying that extent of land which is 2494.32 sq.mtrs. Drawing attention to the said panchnama and map, it is submitted, the petitioners – defendants are occupying that extent of land which is 2494.32 sq.mtrs. with boundary marks and the measurement thereof without portion of wall constructed and except that area of maternity home, the petitioners – defendants are neither owner nor occupier may be permissive user from other land owned and occupied by the respondent – plaintiff permitted, cannot be said to be of the ownership or of occupation of the petitioners – defendants and therefore, they are not entitled to construct a wall at a place where it exists as found in the panchnama drawn by the Court Commissioner twice appointed by the trial Court. He has further submitted that despite summons issued on the date of the suit and Court Commissioner appointed on the very date when suit is filed and on the next date when Court Commissioner drawn the panchnama and map, one of the respondent-trustee of the trust who administers the maternity home has also signed that panchnama where no existing wall reflected despite that, with a view to overreach the process of Court overnight a wall is constructed, which has been ordered to be removed by the impugned order, that too, the said wall is not constructed even in the area which is being occupied by the petitioners-defendants for the purpose of administration but beyond that. Therefore, he has submitted that this petition is required to be rejected with exemplary cost. 19. Having heard the learned advocates appearing for the parties and going through the impugned order as also documents annexed with the petition and compilation produced, it emerges that a suit for declaration and permanent injunction came to be filed by the respondent – plaintiff apprehending construction of a wall over the land belonging to and occupied, if not owned, as disputed by the petitioners – defendants, a suit came to be filed and Court Commissioner was appointed for drawing a panchnama as also map of the disputed land where apprehended wall is to be constructed. If that panchnama which is produced by the Court Commissioner at Mark 9/1 is seen, there appears no wall constructed at the suit land and the said panchnama drawn and map prepared and signed by one of the trustees of the trust who administers the maternity home being defendant No.2 in the suit. If that panchnama which is produced by the Court Commissioner at Mark 9/1 is seen, there appears no wall constructed at the suit land and the said panchnama drawn and map prepared and signed by one of the trustees of the trust who administers the maternity home being defendant No.2 in the suit. However, after drawing of the said panchnama, as it appears from the documents produced and annexed with the petition that on the next date of it, a 6 feet height wall came to be constructed running into 68 feet 10 inches in length which constrained respondent-plaintiff requesting the Court to draw again the panchnama vide an application Exh.12, which was granted by the Court vide order dated 21.5.2013 and pursuant thereto, another panchnama by the very same Court Commissioner came to be drawn along with the map on 25.5.2013 where it appears fresh construction of a wall as aforesaid 6 feet in a height and 68 feet and 10 inch in length, on the northern side of the Court building and southern side of the shopping center of respondent-plaintiff Gymkhana. Thus, it is clear that despite the knowledge of suit being filed, that too, by a respondent-plaintiff Jetpur Gymkhana and Court Commissioner to draw the panchnama and the map, the petitioners – defendants carried out the apprehended construction of a wall in total disregard of Court proceedings filed against them for the very same purpose. 20. Though, learned advocate for the petitioners – defendants submitted that there is no finding recorded by the trial Court so as to hold that respondent –plaintiff is owner and occupier of suit land, it had passed an order of mandatory injunction without giving an opportunity to the petitioners – defendants to prove their ownership over the said land, no mandatory injunction could have been granted directing the petitioners – defendants to demolish the said wall. The said argument appears to be attractive but it is hollow. As claimed in the plaint itself, ownership and occupation in respect of the land is of respondent – plaintiff. The said argument appears to be attractive but it is hollow. As claimed in the plaint itself, ownership and occupation in respect of the land is of respondent – plaintiff. Not only that the documents produced along with the plaint as also in the suit, a set of which is provided to the Court, referred to by the learned advocate for the petitioners – defendants clearly establishes that the respondent – plaintiff, if ownership is not concluded right now leaving it open for the Court to determine is in occupation / possession of the land in dispute. Once, any construction is being carried out, over the land possessed by the plaintiff, and defendant without showing any right, title or interest over the said land, even attempts to construct wall, in absence of even ownership or possession, such high handed action of the petitioners – defendants has to be curbed with iron hand. I am not concluding so far as ownership of the suit land but prima facie from the documents annexed with the petition as also the set of documents produced before the trial Court provided for the perusal and reliance on which is being placed by learned advocate for the defendants, it is clear that the land over which disputed wall is constructed, that too, after suit is filed is on the land possessed and occupied by the respondent –plaintiff. As coming out from the documents and panchnama drawn by the Court Commissioner appointed by this Court also over and above two panchnamas ordered to be drawn by the trial Court, as on date, the maternity home which is being administered by the petitioners – defendants is in the area of 2494.32 sq. mtrs. of land by length and width, which is entrusted for the administration thereof and they are not the occupier of even an inch of land beyond 2494.32 sq. mtrs. of it, which was entrusted administration thereof. However, from the very said panchnama and the map, it is clear that there may be permissive user of open land made by the petitioners– defendants, they have no right, title or interest to construct wall over the same. mtrs. of it, which was entrusted administration thereof. However, from the very said panchnama and the map, it is clear that there may be permissive user of open land made by the petitioners– defendants, they have no right, title or interest to construct wall over the same. The dispute raised with regard to the actual area of possession at the hands of petitioners – defendants have been resolved by appointment of Court Commissioner by this Court and therefore, beyond that area, which is already in their occupation, the land where wall is constructed neither belonged nor possessed by petitioners-defendants. Even if any permissive user made by the petitioners – defendants of that open land will not entitle them to construct any wall over the same, which obstructs respondent – plaintiff or the persons who have right to enjoy that property. According to the submission of learned advocate for the petitioners – defendants that disputed land where wall is constructed is neither owned nor occupied by the respondent-plaintiff, even in that situation also, it will not give any right to the petitioners – defendants to construct over a lands of anybody else, which is neither belonging to them nor even occupied by them. Therefore, the said contention is misconceived. 21. A very tall claim is made in the written arguments before the trial Court while arguing Exh.5 application and repeated here that the over the suit land / disputed land, petitioners – defendants claim right as owner by adverse possession. The said contention is again misconceived and mis-perceived by the petitioners – defendants as they are only entrusted administration of a hospital by the State Government, that too, to the extent of 2494.32 sq.mtrs.. of land, which they have already occupied in the form of hospital building, that too, only from the year 2010 and not from the year 1969 as claimed in the written arguments. The said argument is, therefore, requires to be rejected outright. 22. of land, which they have already occupied in the form of hospital building, that too, only from the year 2010 and not from the year 1969 as claimed in the written arguments. The said argument is, therefore, requires to be rejected outright. 22. Even if arguments advanced to the effect that without recording finding in respect of an ownership of a land, no injunction, that too, mandatory, could have been granted is required to be rejected outright as from the documents produced and relied on by even the petitioners– defendants, at least prima-face respondent – plaintiff is in possession of the said land where wall is constructed by the petitioners – defendants over which the petitioners – defendants have no right and up-till now only permissive user thereof is being made, to construct a wall over the same. 23. Another argument that the order below Exh.5 & 23 is not passed on merit but only with biased mind, as the petitioners – defendants have constructed wall despite the pendency of suit. Even the said argument is also required to be rejected as there is no question of any biased mind by any Court once high handed action of any litigant trying to overreach the Court process has to be dealt with heavy hand and if it is done, it cannot be said that it has been passed with a biased mind. There is no dispute that construction is made over the land to which petitioners – defendants have no right, title or interest except permissive user thereof, if at all it is to be presumed, and therefore, I find no reason to interfere with the said order passed by the trial Court and confirmed by the appellate Court, while exercising jurisdiction under Article 227 of the Constitution of India. 24. In view thereof, this petition is also required to be rejected and it is hereby rejected. Notice discharged. Adinterim relief granted earlier stands vacated. 25. At this stage, Ms.Kruti Shah, learned advocate for the petitioners – defendants requested to continue ad-interim relief granted by this Court for a period of 12 weeks hereof. 24. In view thereof, this petition is also required to be rejected and it is hereby rejected. Notice discharged. Adinterim relief granted earlier stands vacated. 25. At this stage, Ms.Kruti Shah, learned advocate for the petitioners – defendants requested to continue ad-interim relief granted by this Court for a period of 12 weeks hereof. However, such request is hereby refused because the petitioners – defendants have taken a law in their hand being very affluent as in whose name trust is created by his family members was ex-MLA and minister also in the State, acted very highhandedly despite pendency of the suit ignoring the same constructed the wall overnight, which was ordered to be removed by a mandatory order passed below Exh.5 and 23. The said mandatory injunction order was stayed during the pendency of appeal and when appeal is also dismissed, a request was made to the appellate Court to stay it further as petitioners wanted to challenge it before this Court. The appellate Court was also kind enough to extend the said stay granted by it, Since before this Court, the issue of ownership and occupation of the land, where construction of wall is made, was disputed despite two panchnamas by the Court Commissioner, even this Court entertained prayer and directed the Court Commissioner to be appointed and land occupied by the petitioners – defendants measured again for running a hospital which was carried out by Court Commissioner and found that whatever land was granted to the petitioners- defendants for administration of a hospital is possessed and occupied by them excluding the land where wall is constructed obstructing the respondent-plaintiff. Therefore, when there is a mandatory order passed by the Court in the year 2013, which was stayed up-till now, and when this Court finds no merit in the petition, if stay, as prayed for, is granted, it would be encouraging the wrong doer who has attempted to overreach the Court process and constructed the wall and now is out to protect the said illegal construction carried out by him obstructing not only the respondent – plaintiff but the other beneficiaries of the said land. Therefore, the said prayer is refused. 26. Therefore, the said prayer is refused. 26. At this stage, Mr.Mehul Shah, Senior Advocate, learned counsel for the respondent-plaintiff requests that wall which is constructed and Court passed mandatory order to remove the same, the petitioners – defendants be directed to forthwith remove the same. However, respondent –plaintiff, is free to initiate whatever proper action provided under the law for the same. Therefore, direction sought for by learned counsel for the respondent– plaintiff is not required to be acceded to right now and leaving it open to him to have recourse to law.