TAJUDDIN RAJABALI PANJWANI Vs. SHAUKATALI RAJABALI PANJWANI

JUDGEMENT

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

(2.) The background of facts is that the petitioner is the original defendant No.2 in Regular Civil Suit No.269 of 1999, which is preferred by the respondent No.1- original plaintiff, whereas the respondent No.2 herein is the original defendant No.1. The plaintiff and the defendants are real brothers and are residing in a bungalow situated at Plot No.59, of Karimabad Co-operative Housing Society, Ghoddod Road, Surat. The said bungalow was purchased by Rajabali Valimohhmad Panjwani, who is father of the petitioner and the respondents, and after the sad demise of the father, as per the allegation of the petitioner, the respondent No.1- original plaintiff has illegally entered his name in the Co-operative Society's register, which has led the petitioner to file a suit before leaned Board of Nominee, Surat. It is further assertion of the petitioner that claiming to be the sole owner of the property in dispute, the plaintiff filed a suit for declaration and permanent injunction to the effect that the defendants have no right in the property in question and for seeking permanent injunction not to allow the defendants to enter or make any renovation to the property. However, it is not in dispute that the defendants have been staying in the property. Pursuant to the summons having being issued, written statement was filed controverting the version of the plaintiff and it has also been mentioned that during pendency of the suit proceedings, the plaintiff as well as the defendants approached His Highness Prince Aghakhan Shia Ismaili, Conciliation and Arbitration Board of Northern and Eastern Gujarat. It is the assertion of the petitioner that pursuant to the Arbitration Board, an award came to be passed in which the original plaintiff, i.e. respondent No.1, was directed to pay Rs.7,00,000/- each to the defendants and in turn, the defendants will handover back the vacant possession of the property. As per the say of the petitioner, the plaintiff did not comply with the direction issued by the Arbitration Board, as indicated above, nor paid money, which has led one more round of settlement between the brothers and on 11.7.2005, a family settlement was arrived at between the brothers and it was agreed that the property in question shall be partitioned amongst four brothers equally after the bungalow was renovated and developed. Accordingly, as per the say of the petitioner, he has paid an amount of Rs.13,00,000/- for development and renovation of the bungalow in question. The petitioner appears to have then filed an application at Exh.211, requesting learned Judge to recast the issue on the basis of the aforesaid subsequent development and simultaneously also filed an application at Exh.219 under Order 7 Rule 11 of the Code of Civil Procedure ('the Code' for short). Additionally, an application for transfer of the suit before Principal District Judge was also filed but both these applications came to be rejected.

(3.) It is further the assertion of the petitioner on oath that during pendency of the suit, the petitioner also filed Regular Civil Suit No.446 of 2018 before learned Principal Senior Civil Judge, Surat for declaration and permanent injunction and the said civil suit is also related to the very same property and has asserted that the same can be termed as counter claim/ suit. It is the case of the petitioner that despite the aforesaid circumstance, which is prevailing on record, learned Judge did not consider the facts in detail and the application came to be rejected vide order dated 15.1.2019, which is made the subject matter of the present petition under Articles 226 and 227 of the Constitution of India.