LAKSHMIDAS RAGHVJI MANEK Vs. VITHALDAS GOVINDJI MANEK

JUDGEMENT

(1.) THE challenge in this petition filed under Article 227 ofthe Constitution of India is to the order dated 30-5-2012, passed below the application at Exh.5 in Regular Civil Suit No.109 of 2011, by the learned Principal Senior Civil Judge,Anjar ("The Trial Court" for short) whereby the said application has been rejected. There is also a challenge to the order dated 29-11-2012, passed in Civil Misc. Appeal No.59 of 2012, by the 8th Addl. District Judge at Gandhidham (the "Appellate Court" for short), whereby the above- mentioned order of the Trial Court has been confirmed and the appeal filed by the petitioner, rejected.

(2.) THE brief facts of the case are that Raghavji Ratanshi, the father of the petitioner, was granted agricultural land bearing Revenue Survey Nos.732 and 302 as a Butadar, under the Bombay Inams (Kutch Area) Abolition Act, 1958 ("the Act" for short). The petitioner, being a legal heir of Raghavji Ratanshi, filed a suit for declaration and permanent injunction against the defendants, who are the heirs and legal representatives of Govindji Ratanshi, the brother of Raghavji Ratanshi. Along with the suit the plaintiff filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908, ('the Code' for short) at Exh.5, with a prayer to restrain defendants Nos.1 to 5 and their agents from selling the land and to maintain status-quo with respect to the suit land, till the final decision of the suit. It is the case of the petitioner that his father was the owner and occupier of the suit land which was received by him as a Butadar under the Act, therefore, the land was his personal land and not a joint family property. Moreover, the land was New Tenure land, therefore, it could not have been transferred in the name of his brother Govindji Ratanshi, the predecessor-in-title of the defendants.

(3.) THE prayers made in the petition have been strongly opposed by Mr. Nirav C. Thakkar, learned counsel appearing on caveat for the respondents. He has submitted that both the Courts below have recorded concurrent findings of fact, based on available material on record against the petitioner. The impugned orders do not suffer from any perversity or illegality, so as to invite interference from this Court, in exercise of its supervisory jurisdiction. It is further submitted that the father of the petitioner has relinquished his rights in the suit land in the year 1967, in favour of the father of the respondent. An entry to this effect was mutated in the Revenue Record on 20.07.1967. After the death of the respondents' father, the names of the respondents have been entered in the Revenue Record, on 20.09.2000. The suit was filed in the year 2011, much after the death of the father of the petitioner. It is further submitted that assuming, though not admitting, that the transaction was void, it ought to have been challenged within the period of limitation. That the petitioner has no cause of action to file the suit and the Title Clearance Certificate obtained by the respondents cannot be considered as a proper cause of action for filing the suit.