HEIRS OF MAGANLAL BHIMJIBHAI SHETH LABHKUNVARBEN MAGANLAL AND ORS Vs. HEIRS OF DECEASED JETABHAI DESABHAI AND ORS

JUDGEMENT

(1.) HEARD learned advocate Mr. Mehul S. Shah for the appellants and Mr. M. B. Parikh for the respondent No.1. Rest of the respondents though served have not appeared. Appeal is preferred against the impugned judgment dated 10.04.2012 below Exhibit 5, an application for interim injunction in Regular Civil Suit No. 6 of 2011 before the Civil Judge, Amreli by original plaintiff, since such application has been rejected. The prayer in application before the trial Court is to restrain the defendants from taking away possession of the suit property from the plaintiffs. By passage of time original plaintiff as well as defendant No.1 are expired and their legal heirs are on record fighting for their rights over the suit property. So far as present suit property is concerned, description and nature of suit property is not much material. However, it is an agricultural land hold by plaintiff appellant, as alleged, initially as tenant then as a purchaser from defendant Nos. 1 and 2 being original land owners. Rest of the defendants are competent authorities dealing with land record and therefore, so far as internal dispute regarding right and title as well as possession of the suit properties are concerned, probably they are not much interested and hence they have chosen to remain away from such litigations.

(2.) THE sum and substance of the plaintiffs appellants' case is as under: They have purchased the suit property from the defendant Nos. 1 to 4 by registered sale -deed with possession as back as in the year 1962 1965 and since then they are in possession of the suit properties and therefore defendants should not be allowed to dis -possess them. Alternatively, it is claimed that even if it is held that they are not in position or entitle to purchase such suit properties pursuant to restrictions by any law then in that case considering their possession since the year 1962 -65 onwards they shall be entitled to continue such possession as adverse possession against the defendant Nos. 1 and 2, since they have never claimed their possession back, may be because defendants have accepted the sale -consideration and executed the sale deed, which is also registered before the competent authority.

(3.) AS against that the case of the defendants is to some extent technical, wherein it is contended that practically it is defendant No.7; being Deputy Collector, who is competent authority under the Tenancy Act; has initiated LTA case as back as in the year 1968 i.e. at the earliest after the sale transactions and such revenue proceedings have been dragged upto the Honourable Supreme Court, wherein original plaintiffs have failed to establish their right to purchase and occupy the suit property as a tenant. It is further contended that during such legal process, plaintiffs have already filed one Civil Suit No. 160 of 1991 challenging the order of the Revenue authorities and for declaration that he is owner and in possession of the suit land, which was dismissed by the judgment and decree dated 04.05.2006 by the Civil Court. A Regular Civil Appeal No. 23 of 2006 against such judgment was also dismissed by the District Court, Amreli on 30.06.2010; which was challenged by filing Second Appeal No. 163 of 2010 before this High Court. However, such Second Appeal was also dismissed by the High Court vide judgment and order dated 30.11.2010. Though plaintiffs have discussed in the plaint and application that order of High Court in Second Appeal referred herein above has been challenged before the Honourable Supreme Court, it has been disclosed on record that even Special Leave Petition No. 2227 of 2011 against such judgment and order in Second Appeal between the parties was dismissed by the Honourable Supreme Court on 25.02.2011. Therefore, it is submitted that when plaintiffs have failed in first round of litigation and when plaintiffs have not claimed to protect their right of possession in first suit, they should be estopped from filing second suit on the same ground. Therefore it is submitted that when plaintiff is not entitled to purchase the suit properties under the legal restrictions than plaintiffs are not entitled to seek any interim relief so as to protect their possession and therefore rejection of application for stay by the trial Court is valid and proper.