HABIBBHAI KHAMISABHAI SAMA Vs. RAMNIKBHAI MEGHAJIBHAI POPAT

JUDGEMENT

(1.) THE petitioner in this petition preferred under Article 227 of the Constitution of India challenges judgment and order dated 29th June 2010 passed by the learned Additional District Judge and Presiding Officer, 6th Fast Track Court, Rajkot in Civil Misc. Application No. 5 of 2010 whereby the Appellate Court confirmed the common order passed below Exhibit 5 and 13 by the learned 4th Additional Senior Civil Judge , Rajkot dated 18 th December 2009 in Regular Civil Suit No. 261 of 2009 in the following factual background.

(2.) THE petitioner is the original plaintiff and the respondent is the original defendant in Regular Civil Suit No. 261/09 which seeks reliefs of declaration and permanent injunction. It is the case of the petitioner plaintiff that he is doing the business of scrap and is in possession of the plot situated at Shiyaninagar Society since last more than 15 years and he has been put into the possession of this suit plot by the owner Santokben Popat and from there onwards he enjoys this possession uninterruptedly. The total suit land admeasures 257.92 Sq. yards. He has also constructed one room with veranda in the said plot. It is alleged that the respondent tried to forcefully dispossess him which necessitated filing of the suit. A police complaint filed by respondent has also been brought on the record to emphasise that the respondent had admitted the possession of the petitioner in respect of the suit plot. Reliance is placed on various judgments to emphasizes press the point that both the Courts ie trial court and the Appellate Court had committed serious error in granting injunction in favour of the present respondent, when there is no provision for granting injunction against the plaintiff in a suit preferred by the present petitioner. It is also the say of the petitioner that when in absence of counter claim, no mandatory order for restoration of possession can also be passed at the interlocuatary stage particularly when the petitioner is in the settled possession for the past 15 years, no interference could have been allowed. The following are the judgments produced to substantiate the averments made in the petition.

(3.) THE respondent urged that the claim is made through the mother of the respondent who had expired on 15 th June 1990 much before 15 years and the respondent inherited the property through her will. He has also produced the share certificate issued by the society in the name of Santokben and the electricity connection for which the intimation was sent to GEB. It is alleged that the petitioner is known for his activities of grabbing properties of others in connivance with the police force. Learned advocate also urged that when consecutively two courts have held against the present petitioner and virtually there is no documentary evidence to establish prima facie his legal possession, he cannot depend upon the panchnama to establish his possession following which judgment which is sought to be relied upon, the Court passed following order thus :