Appeal From Order No. 333 of 2016, Civil Application No. 9031 of 2016 in Appeal From Order No. 333 of 2016, Civil Application No. 9924 of 2016 in Civil Application No. 9031 of 2016, Civil Application No. 11164 of 2016 in Appeal From Order No. 333 of 2016 and Civil Application No. 2835 of 2017 in Civil Application No. 9031 of 2016. Case: Rameshbhai Ghoghabhai Bharwad and Ors. Vs Chetnaben Chetankumar Patel. Gujarat High Court

Case Number:Appeal From Order No. 333 of 2016, Civil Application No. 9031 of 2016 in Appeal From Order No. 333 of 2016, Civil Application No. 9924 of 2016 in Civil Application No. 9031 of 2016, Civil Application No. 11164 of 2016 in Appeal From Order No. 333 of 2016 and Civil Application No. 2835 of 2017 in Civil Application No. 9031 of 2016
Party Name:Rameshbhai Ghoghabhai Bharwad and Ors. Vs Chetnaben Chetankumar Patel
Counsel:For Appellant: Mehul Shah, Ld. Senior Counsel and Gaurav Chudasama, Advocate and For Respondents: Sandeep R. Limbani, Advocate
Judges:A.J. Desai, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order XLI Rule 27; Order XLIII Rules 1, 1(r), 2; Order XXXIX Rules 1, 2
Judgement Date:March 22, 2017
Court:Gujarat High Court
 
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Judgment:

A.J. Desai, J.

  1. ADMIT. Mr. Sandeep Limbani, learned advocate waives service of admission on behalf of the respondent.

  2. With the consent of the learned advocates appearing on behalf of the respective parties, the appeal is taken up for final hearing today.

  3. A challenge in this appeal under Order 43, Rule 1(r) of Code of Civil Procedure, 1973 (sic-1908) (hereinafter referred to as "the Code"), is against an order dated 24/08/2016 passed by learned 2nd Additional Senior Civil Judge, Dhrangadhra below application Exh. 5 preferred by the original plaintiff under Order 39 Rule 1 and 2 of the Code in Special Civil Suit No. 17 of 2016, by which, learned Trial Court has allowed the application preferred by the original plaintiff and restrained the original defendants from interfering with the peaceful possession of the original plaintiff towards the suit land bearing Survey No. 165/14 admeasuring 13 acres 00 gunthas, situated in the sim of village: Manekvada, Taluka: Harvad, District: Surendranagar.

  4. The case put forward by the original plaintiff is as under:

    4.1 That the agricultural land in dispute was granted to one Mohanbhai Motibhai Koli for carrying out agricultural activities as restricted tenant. The said land was granted to said Mohanbhai Koli by Deputy Collector, Dhrangadhra vide order dated 20/10/1968.

    Subsequent to the death of said Mohanbhai, name of his legal heirs namely Shamuben widow of Mohanbhai, Bhalabhai and Laljibhai were mutated in the revenue record.

    4.2 It is the case of the original plaintiff that those three persons executed General Power of Attorney with regard to the disputed land in favour of Mr. Mansukhlal Savjibhai Patel, resident of village: Manekvada and the said Mansukhlal was granted authority to deal with the land in question. It is also the case of the plaintiff that on the same day, other two documents, namely, Agreement to sell as well as Possession receipt were executed by all the three persons. By the said Agreement to sell, price of the land was fixed at Rs. 50,000/-, which was paid, against which, possession of the property was handed over to the agreement holder, namely, Chetnaben, who is daughter-in-law of the said power of attorney Mr. Mansukhlal Patel.

    4.3 It is the case of the plaintiff that order of grant of land for agricultural purpose was cancelled by the State of Gujarat pursuant to breach of conditions of the order. The matter was persuaded by the said Mansukhlal before various authorities as power of attorney holder and ultimately the land was re-granted by revenue department vide order dated 20/06/2007. Pursuant to the said order, name of Bhalabhai Mohanbhai was entered into the revenue record. The land was treated as new tenure land. Power of Attorney Holder Mansukhlal intended to use the land for some other purpose. Hence, the land was required to be converted into old tenure land and, therefore, he filed an application before Competent Authority. The permission was granted by the competent authority vide order dated 03/06/2016 and the land was converted into old tenure land.

    4.4 It is the case of the plaintiff that after completion of all the procedure i.e. up to converting the land from new tenure to old tenure, defendant No. 1 Bhalabhai Mohanbhai executed a sale deed in favour of defendant Nos. 5 to 8 and transferred the said property on behalf of all the owners including his mother and brother, who were co-owners of the property. The sale deed was executed on 10/05/2016 in favour of defendant Nos. 5 to 8.

    4.5 It is the case of the plaintiff that power of attorney holder namely Mansukhbhai Patel executed a sale deed in favour of the original plaintiff on 07/04/2016 in view of the power of attorney given to him by all the owners. The said sale deed was not registered on the ground that Bhalabhai has raised objections as he had published a Notice in the newspaper on 31/08/2015 for cancellation of the Power of Attorney executed in favour of Mansukhlal Patel.

    4.6 It is the case of the plaintiff that when the original defendants tried to dispossess the plaintiff Chetnaben, who was in possession of the property pursuant to the Agreement to sell executed by her father-in-law Mansukhlal Patel and having possession receipt, filed a suit being Special Civil Suit No. 17 of 2016 before learned Principal Civil Judge, Dhrangadhra and prayed for several reliefs against the said Bhalabhai, his family members and purchasers.

    4.7 The plaintiff also filed an application Exh 5 and requested that the defendants may be restrained from disturbing the possession of the property, which the plaintiff is having since year 1999 and the...

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