INDRAVADAN MANUBHA PATEL Vs. JITENDRABHAI BABUBHAI BAROT

JUDGEMENT

(1.) LEAVE to transpose the appellant No.2 herein as respondent No.12 as he was not the appellant before the lower Appellate Court. Registry is directed to amend the cause title of the main Second Appeal accordingly.

(2.) PRESENT Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant herein � original defendant No.5 to quash and set aside the impugned judgment and decree dated 30.09.1999 passed by the learned 7th Joint Civil Judge (S.D.), Nadiad in Regular Civil Suit No.563 of 1990 by which the learned trial Court has decreed the said suit in favour of respondent No.1 herein � original plaintiff granting the declaration and permanent injunction as prayed for as well as the impugned judgment and order dated 13.05.2009 passed by the learned 3rd Additional District Judge, Kheda @ Nadiad in Regular Civil Appeal No.8 of 2000 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellant herein � original defendant No.5 confirming the judgment and decree passed by the learned trial Court.

(3.) HOWEVER, it is required to be noted that as such the order passed by the Mamlatdar declaring the sale transaction in favour of the appellant as illegal and in breach of provisions of the Fragmentation Act has been confirmed upto the High Court and as such there is no stay in the Letters Patent Appeal. It appears that even no notices have been served upon the concerned respondents in the Letters Patent Appeal. Even otherwise it is required to be noted that at the relevant time when the learned trial Court passed the decree, no further appeal was pending. The Mamlatdar and Deputy Collector answered the reference to the learned Civil Court and thereafter, considering the same, the learned trial Court has decreed the suit which has been confirmed by the learned Appellate Court. Under the circumstances, it cannot be said that both the Courts below have committed any error and/or illegality in decreeing the suit and granting declaration and permanent injunction as prayed for in favour of the plaintiff.