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2023 DIGILAW 486 (GUJ)

KANUBHAI HIRABHAI RAM v. ARJANBHAI HIRABHAI RAM

2023-03-20

SANDEEP N.BHATT

body2023
ORDER : 1. Present petition is filed by the petitioner being aggrieved by and dissatisfied with the judgment and order dated 06.07.2021 passed below Exh.12 in Civil Misc. Appeal No. 02 of 2021 by the learned 2nd Additional District and Sessions Judge, Kodinar for not granting interim injunction against the respondent with respect to the cattle shed slopping land bearing Survey No. 46 paiki 2 admeasuring 01 Hector - 72 Acre - 43 sq.mtrs. of village : Morvad, Taluka Kodinar. 2. The brief facts of the present case are as under: 2.1 The petitioner and the respondent are the brothers. It is the case of the petitioner that the petitioner has filed Regular Civil Suit No. 1401 of 2019 in the Court of Principal Senior Civil Judge, Kodinar against the respondent herein pertains to the land bearing Survey No. 46 paiki 2, admeasuring 01 Hector - 72 Acre - 43 sq.mtrs. of village: Morvad, Taluka Kodinar and prays for interim injunction by praying various prayers more particularly, the prayer that the respondent may not create any disturbance and also restrict the respondent from using and occupying the agricultural land, the gate, garage, slopping land and residential houses. 2.2 Learned trial Court has heard the submissions made at the bar and after considering the rival submissions, dismissed the Exh.5 application by way of impugned judgment and order dated 25.02.2021. 2.3 Being aggrieved by and dissatisfied with that order, the present petitioner ha preferred the Civil Misc. Appeal No. 02 of 2021 before the learned 2nd Additional District and Sessions Judge, Kodinar under the provisions of Order 43 Rule 1(r) read with Section-104 of C.P.C. The learned lower appellate Court after recording the findings on the issue involved, which pertains to the injunction prayed by the petitioner in Exh.5 application, has partly allowed the appeal by granting relief pertains to land bearing Survey No. 46 paiki 2, admeasuring 01 Hector - 72 Acre - 43 sq.mtrs. of village : Morvad except the slopping which is existing in front of the premises and therefore, the petitioner has preferred the present petition. 3. Heard Mr. P.J. Kanabar, learned advocate appearing for the petitioner and Mr. H.R. Prajapati, learned advocate appearing for the respondent. 4. Mr. P.J. Kanabar, learned advocate appearing for the petitioner submits that the learned lower appellate Court has totally ignored the materials available on record and has passed an erroneous order. 3. Heard Mr. P.J. Kanabar, learned advocate appearing for the petitioner and Mr. H.R. Prajapati, learned advocate appearing for the respondent. 4. Mr. P.J. Kanabar, learned advocate appearing for the petitioner submits that the learned lower appellate Court has totally ignored the materials available on record and has passed an erroneous order. He has further submitted that though the learned lower appellate Court has found anything in favour of the present petitioner in the impugned judgment, but in the petty portion, the learned lower appellate Court has completely erred by not granting full relief as prayed in Exh.5 application and by excluding the premises pertains to sloping portion in from of the gate of the land in question. He has further submitted that various documents are produced on record, which shows that prior to the filing of the suit, the petitioner has approached the Executive Magistrate, where, there is come findings in favour of the present petitioner regarding the disputed land. He further submitted that pursuant to the family arrangement, the land in question, which is subject matter of the petitioner, is undisputably claimed the share of the present petitioner and the respondent has no business to interfere with the said area, as the respondent has also received his share by way of getting any agricultural land. He has further submitted that the learned lower appellant court has erred in law by believing version, which is put forth by way of affidavit and also, by giving weightage to the report of the Court Commissioner which is call from the record and as per his submission that such process is carried out subsequent to filing of the present suit with a view to create some evidence in favour of the respondent. The affidavit, which is filed in support of the case of the respondent is filed after the suit is filed and therefore, it should not be considered as genuine one and believable document. Therefore, he prays that the present petition deserves to be allowed by exercising supervisory power by allowing the Exh.5 application in toto including the premises of slopping portion, which situated in front side of gate of land bearing Survey No. 46 paiki 2. 5. Per contra, Mr. Therefore, he prays that the present petition deserves to be allowed by exercising supervisory power by allowing the Exh.5 application in toto including the premises of slopping portion, which situated in front side of gate of land bearing Survey No. 46 paiki 2. 5. Per contra, Mr. H.R. Prajapati, learned advocate appearing for the respondent opposed this petition and submitted that as there is concurrent findings of fact regarding the rights of the respondent about the slopping portion of the land in question. He has also submitted that the residential premises are also used by the present respondent since so many years. He has also drawn my attention towards the panch-rojkam i.e. report of Court Commissioner and from the sketch, it is pointed out that premises, which is absolutely in ownership of the petitioner, is protected by the impugned order passed by the learned District Judge, but the premises which in his possession, which is disputed premises regarding slopping portion of the land and residential house are – that version is supported by the affidavit filed by the persons in support of the respondent. He has further submitted that at the stage of deciding application under Order 39 Rule 1 and 2of the Code, the Court has to examine the prima-facie case and the balance of convenience as well as the irreparable loss found and the evidence at length will be appreciated at the time of trial. 6. Both the learned advocates submitted that the suit is also required to be expedited in the facts and circumstances of the case, however, Mr. Kanabar, the learned advocate prays that the petition is deserved to be allowed by granting Exh.5 application in toto. 7. Mr. Prajapati, learned advocate has opposed the same and submitted that since the concurrent findings recorded by both the Courts below are in favour of the present respondent pertains to the slopping portion of the residential premises, no interference is required and otherwise, interest of the petitioner is protected regarding the land of his ownership as well as possession of the said land. 8. I have considered the rival submission of the parties and I have also considered the findings recorded by the learned lower appellate Court. 8. I have considered the rival submission of the parties and I have also considered the findings recorded by the learned lower appellate Court. It is correct fact that the learned lower appellate Court has found the impugned order is apparently erroneous and incorrect and therefore, the powers under Order 43 Rule 1(r) read with Section-104 of C.P.C. is required to be exercised. The trial Court has rightly discussed the case of rival parties and has rightly come to the conclusion that the land bearing Survey No. 46 paiki 2 admeasuring 01 Hector - 72 Acre - 43 sq. mtrs. of village : Morvad, Taluka Kodinar, is indisputably in ownership of the petitioner and which is also in possession of the petitioner. However, the Court has also found that except the land, which is situated near the common gate and thereafter, there is slopping land, where the livestock is kept and the water-tank is provided, regarding that the dispute raised by the present respondent, which is required to be considered. Thereafter, the learned lower appellate Court has further proceeded by giving the finding by discussing the affidavit filed by 12 persons, whereby they have consistently supported the version of the respondent that the portion, which is right-side of the entry of the land in question of Survey No. 46 paiki 2 i.e. slopping land, is in occupation of the present respondent i.e. Arjan Hirabhai Ram. The Court has found that though the entire possession of the land in question i.e. Survey No. 46 paiki 2, is indisputably with the present petitioner, but the only portion, which is situated near the entry gate i.e. slopping land, is found in the possession of the respondent and that is supported by the report of the Court Commissioner. 9. The Court has found that though the entire possession of the land in question i.e. Survey No. 46 paiki 2, is indisputably with the present petitioner, but the only portion, which is situated near the entry gate i.e. slopping land, is found in the possession of the respondent and that is supported by the report of the Court Commissioner. 9. Considering the above findings, I found that there is no error committed by the learned lower appellate Court, which is based on the material available on record and the Court has to consider the material available on the record and therefore, I do not find any perversity or any illegality in the findings given by the learned lower appellate Court and learned lower Court has rightly protected the interest of the petitioner to the extent that the documentary evidence available at this stage, however, it is open for the parties to lead further evidence during the course of trial and the learned Court will decide the suit in accordance with law. In view of the judgment rendered by the Hon’ble Apex Court in the case of M/s. Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 in Paragraphs-15 to 17, this Court has limited jurisdiction under Article 227 of the Constitution. Paragraphs-15 to 17 of the judgment are as under: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse [Celina Coelho Pereira and Others vs. Ulhas Mahabaleshwar Kholkar and Others] violation of fundamental principles of law or justice. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse [Celina Coelho Pereira and Others vs. Ulhas Mahabaleshwar Kholkar and Others] violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber vs. Dass Estate (P) Ltd. has observed: “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” “17. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” “17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the ex-parte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution.” 10. Therefore, I found that there is no case made out to exercise the power under Article 227 of the Constitution of India. Hence, the petition requires to be dismissed and accordingly, the petition is dismissed. Therefore, I found that there is no case made out to exercise the power under Article 227 of the Constitution of India. Hence, the petition requires to be dismissed and accordingly, the petition is dismissed. However, considering the fact that the suit is filed in the year 2019, it is appropriate to direct the learned trial court to expedite the hearing of the proceedings as early as possible, preferably on or before 30.04.2024. It is expected that the parties shall co-operate with the proceedings.