PATEL HIRABHAI BECHARBHAI Vs. GANDABHAI PRABHUDAS PATEL

JUDGEMENT

(1.) THE petitioners of Special Civil Application No.5007 of 2007 are the original defendants and the respondents No.1 to 4 are the original plaintiffs and respondents No.5 and 6 are original defendant No.1 and original defendant No.13 respectively.

(2.) IN this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the judgment and order dated 13.12.2006 passed by 2 nd Additional District Judge, Sabarkantha at Himmatnagar in Civil Appeal from Order No.13 of 2006, whereby the learned Judge dismissed the appeal and confirmed the judgment and order passed by learned Civil Judge (JD), Prantij below Exh.453 in Regular Civil Suit No.15 of 1980.

(3.) RESPONDENTS No.1 to 4 ( original plaintiffs) preferred Regular Civil Suit No.15 of 1980 before the Court of Civil Judge, Prantij against the respondents (original defendants No. 2 to 38) and the respondent No.5 (original defendant No.1) for declaration to the effect that the defendants No.2 to 38 have no right to construct on the land bearing Survey No.17/B. Respondents No.1 to 4 have prayed for injunction restraining the defendants from making encroachment or construction over the suit land. Plaintiffs and defendant No.1 jointly owned suit land situated at village Jetpur, Taluka: Prantij admeasuring 3 acres and 2 gunthas. Father of the plaintiffs and that of the defendant No.1 jointly applied for the permission of converting the land into non-agricultural land in the year 1967 and such permission was granted by Mamlatdar, Prantij vide its order dated 29.5.1962. Of course, with a condition that the suit land should be divided into 48 plots admeasuring 4894 sq.yards and the remaining land was to be kept open. Defendants No.2 to 29 made construction over 34 plots. It was the case of the plaintiffs that the defendants have no right over the suit land and, therefore, against the construction, declaration and permanent injunction was sought where application for interim injunction under the Code of Civil Procedure was preferred. The original defendants resisted the suit on the ground that there was pendency of one Special Civil Suit No.121 of 1979 before Civil Judge, Prantij against defendants No.1 to 4 and, therefore, present suit was not maintainable. Joint property was sold in the year 1962 to defendants No.2 to 38 for consideration of Rs.9000.00 and since then the defendants No.2 to 38 are in possession of the respective plots, the trial Court after hearing both the sides, confirmed the ad interim relief granted by restraining the respondents from making any construction on any part of the suit land and on the marginal land till the final disposal of the suit. Being aggrieved by the said order, the petitioners (original defendants) preferred Appeal from Order being A.O No. 9 of 1980 before the District Court, Sabarkantha, which was partly allowed restraining the defendants from making construction on the respective plots. However, the order restraining them from making use of marginal land was quashed and set aside. The Panchnama was drawn of the plots and the same was carried out for Exhs. No.170,171 and 172 ( Annexure-E).