MANJIBHAI VIRJIBHAI TEJANI Vs. KUMUDKUMARIBA JYOTINDRASINHJI JADEJA

JUDGEMENT

(1.) PETITIONERS are the original defendants who have approached this Court by way of filing this writ petition under Articles 14 & 227 of the Constitution of India, challenging the order dated 11th August 2008 passed by the learned Additional District Judge & Presiding Officer, Fast Track Court, Bhavnagar in Misc. Civil Appeal No. 35 of 2008. It would be necessary to briefly outline the facts of the present case ? considering the long drawn litigations between the parties.

(2.) THE petitioners' forefathers purchased land bearing Revenue Survey No. 253/2 of Mouje Village Vadla of Bhavnagar City admeasuring about 10A-28 Gunthas [hereinafter referred to as, "the suit land"] by a registered sale deed dated 15th December 1964. THE said land belonged to the then ruler of Bhavnagar State Shri Krishna Kumar Sinhji who had gifted the same on 23rd July 1949 to Shri Dharamkumar Sinhji, which subsequently came to be purchased by Shri Virjibhai Motibhai Tejani & Balubhai Motibhai-forefathers of the petitioners by a registered sale-deed, as mentioned above. On 2nd March 1965, DILR was directed to state the correct measurement of the land.

(3.) THE present respondent is the legal heir of Shri Dharamkumar Sinhji who executed the document power of attorney on 13th May 2002 in favour of one Satubha Kalyansinh Sarvaiya. This document makes a mention of transfer of land bearing Survey No. 253/2 to the forefathers of the petitioner and the measurement stated therein is of 9A-35G, and therefore, 34 gunthas of land is said to be more than that was transferred and hence an agreement to sale was executed in favour of Satubhai Kalyansinh Sarvaiya in respect of said 34 Gunthas of land. One Agreement to Sale also was executed in favour of Satubha Kalyansinh Sarvaiya on the very same day ie., 13th May 2002. However, it is lamented that after the petitioner obtained sanction from various authorities concerning the suit land and started construction work, only with a view to hamper this progress and to extort money, a suit has been filed by the respondent being Regular Civil Suit No. 40 of 2008 in the Court of learned Principal Sr. Civil Judge, Bhavnagar for declaration and permanent injunction where application for interim injunction was also preferred. In the said suit filed on 25th January 2008, no ad interim injunction was granted. However, after hearing both the sides on 10th March 2008, injunction application was allowed in favour of the respondent. To enable the petitioner to approach the appellate forum, the order granting injunction was stayed, and accordingly, the petitioner filed Misc. Civil Appeal No. 35 of 2008 before the District Court, Bhavnagar.