AMINABEN ISHMAYIL BHAI Vs. DECEASED MUSABHAI SULEMAN MATVA

JUDGEMENT

(1.) Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs:-

(2.) The case of the petitioners is that the petitioner- original plaintiff had field Regular Civil Suit No.813 of 2015 before learned 11th Additional Senior Civil Judge, Jamnagar for seeking partition of the suit property and permanent injunction. The suit properties are consisting of Revenue Survey No.1252, Plot No.57, admeasuring 5063 Sq. Mtrs. (measurement as per the sale deed dated 20.1.1970), situated at Ranjitnagar Road, near Harshad Mill Chali, opp. Nilkanthnagar, Jamnagar. Along with the suit, an injunction application was filed below Exh.5 under Order 39 Rule 1 and 2 of the Code of Civil Procedure. However, it is the case of the petitioners that learned Trial Judge without considering the material on record and without dealing with the contentions at length was pleased to reject the application vide order dated 21.7.2016 and feeling aggrieved by the said decision, an appeal was filed before learned District Judge, being Civil Misc. Appeal No.35 of 2016, which came up for consideration before learned learned 3rd Additional District Judge, Jamnagar, who also confirmed the order and dismissed the appeal by judgment and order dated 17.2.2017 and these are the two decisions passed by the Courts below concurrently, which is the subject matter of the present petition.

(3.) In the Court below, the case was put up on the premise that the husband of the plaintiff No.1 and father of the plaintiff Nos.2 to 10 deceased Ismailbhai Suleman and deceased Musabhai Suleman and Mamadbhai Sulaman, along with Iqbalbhai Sulaman and mother Bibibai Musabhai Matva died in 1974, whereas Ismailbhai died in 2009. It is the case of the petitioners that during lifetime, Bibibai Musabhai Matva had purchased the land in question by registered sale document on 22.1.1970 but then, without executing any Will or without making any arrangement with regard to the property, she died in 1974. It was a self acquired property of deceased Bibibai Musabhai Matva. As a result of this, the plaintiffs as well as the defendants became joint owners of the property in question. Amongst the plaintiff No.1 as well as the plaintiff Nos.2 to 10 even in the lifetime of Ismailbhai with the defendants to the proceedings, no partition had taken place and deceased Ismailbhai was residing in the suit property by constructing one room (katcha construction) and this one room admeasures 500 Sq. Ft. being utilized by the plaintiff No.4 for dumping the material related to Mandap services. It is the further case of the plaintiffs that the defendant No.2 by encroaching upon this property to a substantial extent has constructed a house in November 2015 without the consent of the plaintiffs and despite the fact that there is one-fourth share of the plaintiffs in the property, the defendant No.2 denied and without seeking any permission from Jamnagar Municipal Corporation, has constructed illegal construction and house for which the plaintiff No.1 has in writing drawn the attention of the Corporation on 30.11.2015. The department of the Corporation has executed a rojkam and the defendant No.2 was also given a notice under Section 260(1) of the Bombay Provincial Municipal Corporation Act, 1949 ('BPMC Act') on 9.12.2015. But, then, the defendant No.2 being a headstrong person has without considering the said steps of even the Corporation continued the construction. Since the legitimate rights to one-fourth extent in the property has been denied and illegal construction is being continued, the plaintiffs were left with no alternate but to submit a suit on 19.1.2016 along injunction application.