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2018 Supreme(Guj) 980

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Mohammad Ali Saraf Ali - Appellant
Versus
Jasabhai Lakhabhai Bharwad - Respondent
Civil Revision Application No. 85 of 2015
Decided On : 27-07-2018

Advocates Appeared:
R.M. Pardiwala, Adv., Amit N Patel, Adv., Bhargav Karia, Adv., Asso, Adv., Anal S Shah, Adv.

Headnote:

Code of Civil Procedure, 1908 - Order 7 Rule 11 - Gujarat Land Revenue Code - Section 135-L - Land Case - Plaintiffs case was that his father had four sons and the plaintiff were two sons, one had expired - There was land admeasuring 500 meters in Survey, which in all was admeasuring 6 hectares and 56 R.A - Land was in the name of one - On the death her name was deleted from the revenue records - Held, Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or sub-traction or words or change of its apparent grammatical sense - Intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole - At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities - In view of the above discussion, which prima facie reveals a cause of action, the decisions cited by learned advocate appearing on behalf of the applicant cannot be said to be applicable on the facts of the present case - Accordingly, Court see no reason to interfere with the order passed by the trial Court - Trial Court shall proceed with the suit and is requested to hear and dispose of the same as expeditiously as possible, preferably within a period of one year from the date of receipt of writ of order of this Court - Application dismissed. (Paras 18, 19)

JUDGMENT

BIREN VAISHNAV, J.

1. The present revision application has been filed by original defendant Nos. 18 to 21. They are aggrieved by the order dated 15.12.2014 passed by the learned 3rd Additional Civil Judge (SD) Amreli by which, their application Exh.52 under Order 7 Rule 11 of the Code of Civil Procedure, 1908, came to be rejected.

2. The facts in brief are as under:

2.1 The respondent No.1 original plaintiff filed a suit being Regular Civil Suit No. 144 of 2013 in the Court of the learned 3rd Additional Civil Judge, (SD), Amreli. The respondent Nos. 2 to 18 are original defendants Nos. 1 to 17 in the said suit. The plaintiffs case was that his father Lakhabhai had four sons. Samatbhai and the plaintiff were two sons. Samatbhai had expired. There was land admeasuring 500 meters in Amreli bearing Survey No. 943, Survey No. 946,947 and 948, which in all was admeasuring 6 hectares and 56 R.A. The land was in the name of one Mohammad Ali, Sakinaben, Shirinalibai, Nafisa, Sarafali and Hussainabai. On the death of Hussainabai on 27.7.2003, her name was deleted from the revenue records on 23.05.2013. As a result, the names of Mohammad Ali and his three sisters, namely, Sakinaben, Shirinalibai and Nafisa were entered in the revenue records. On the Collector, appropriating the lands, the names of defendants Nos. 18 to 21 were entered in the revenue records.

2.2 Adjacent to this land, according to the plaintiffs there was land which was uncultivated and it was the case of the plaintiffs that they were in possession of such land and had a house constructed on such land and were using it for the past 20 years. The plaintiff further stated that lands being survey nos. 943, 946, 947 and 948 were sold by the defendants nos. 18 to 21 to defendants Nos. 4 to 17 by a registered Sale Deed dated 28.10.2013. The plaint further goes to state that Mohammad Ali was out of India and the three sisters were not using the land and one Shaukat Ali Ismail, since deceased and one Quasambhai Ismailbhai were tenants on the lands. On their death, by way of an arrangement, the lands were with the defendants Nos. 18 to 21 and their names appeared in the Paani-Patrak from 1950 to 1965. The defendant Nos. 18 to 21 had sold the lands by a registered Sale Deed of 28.10.2013. The plaintiffs were in possession of the land as the original tenants namely Zulfikar and his father had handed over possession of this land to the plaintiffs for over 21 years now. The plaintiffs, therefore, had prayed that defendant No. 18 and his sisters namely defendant Nos 19 to 21 had conspired and sold the lands to the defendant Nos. 4 to 17. It was the case of the plaintiff that the possession was with him and of which fact the sisters-defendant Nos. 19 to 21 were aware and therefore the sale of land by a registered Sale Deed dated 28.10.2013 was bad. It was therefore the case of the plaintiff that if the sale by the defendant Nos. 18 to 21 in favour of defendant Nos. 4 to 17 was held to be valid, the plaintiff would be dispossessed. The plaintiff therefore also raised a plea of adverse possession and made the following prayers in the suit:

(1) That the action of Hussainabai in deleting her name from the revenue entry on 27.05.2013 was illegal. That the action was in violation of Section 135-D of the Land Revenue Code and that the defendant Nos. 4 to 17 be restrained from interfering with the possession of the plaintiffs and the registered Sale Deed dated 28.10.2013 be declared as illegal.

(2) The present applicants who are defendants No. 18 to 21 filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint. According to the applicants, on reading the plaint and its averments particularly the reliefs namely prayer clause-1 where the plaintiff had prayed for a declaration that the deletion of the name of Hussainabai be declared as illegal and that certification of the mutation entry without serving notice under Section 135-D be declared illegal, w






































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