IN THE HIGH COURT OF GUJARAT AT AHMEDABAD (DISTRICT:BANASKANTHA) MISC. CIVIL APPLICATION NO.

OF 2012

Ismailbhai Ishabbhai Machhaliya & Anr. - Applicants Versus Mamlatdarshri & Ors. INDEX ___________________________________________________ Sr. No. 1. Annexures Particulars 1 to Page No. ___________________________________________________ Memo of the petition - Respondents

Place: Date : (Advocate for the applicants)

LIST OF EVENTS

That the petitioner The petitioners, being aggrieved by the approach of , beg to prefer this petition.

Hence, this petition.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD (DISTRICT: BANASKANTHA) MISC. CIVIL APPLICATION NO. OF 2012

1. Ismailbhai Ishabbhai Machhaliya Aged : Adult, Occupation: Agriculture 2. Adambhai Ishabbhai Machhaliya Aged : Adult, Occupation: Agriculture Both are residing at:Near Ghathaman Gae Jampura, Taluka Palanpur District Banaskantha Versus 1.Mamlatdarshri Office of Mamlatdar Palanpur 2.Prahladbhai J. Brahmbhatt Aged: Adult, Occupation: Retired Member 3.Yogin Prahladbhai Bahmbhatt Aged Adult, Occupation: Service 4.Sidharth Prahladbhai Brahmbhatt Aged Adult No.2 to 4 are residing at: Gobari Road Opp: Lions Club Palanpur District Banaskantha .. Opponents .. Applicants

APPLICATION UNDER SECTION 2(b)

3

read with Sections 10 and 12 of the Contempt of Courts Act, 1971 - - - - - - - - - - - - - - TO, THE HONOURABLE THE CHIEF JUSTICE AND THE OTHER HONOURABLE JUDGES OF THE HIGH COURT OF GUJARAT AT AHMEDABAD: The humble petition of the

applications above named:MOST RESPECTFULLY SHEWETH THAT:1. The

applicants

are

approaching

this

Honble

Court against the unlawful, illegal action on the part of the opponents, who have committed willful and deliberate disobedience of the

process of Court and also of the judgement and decree passed by the $th Additional Sr. Civil Judge, Palanpur in Regular Civil Suit No.40 of 2011.
2. That the opponents herein have entered into the

land

of

the

applicants

and

by

using

JCB

Machine, have fallen down structures, where the applications and their family members were

residing and have also done severe damage to the standing crops of the applicants. The into

opponents the land

herein have illegally entered of the applicants and by

illegal

actions, have tried to remove the applicants

from their land and to take possession of the land in question. Here, it is pertinent to

note that the trial Court, after taking into consideration the pros and cons of the matter and after dealing with the issue at large, has decreed the suit in favour of the applicants. In the said the order, the Honble as the Court owners has and

declared

applicants

occupiers of the Revenue Survey No.813 paiki Acr 1 08 and that gunthas at the the of land by adverse has by also the

possession declared

same

time passed

orders

Mamlatdar Dy. Collector and Sachiv are false, illegal, and voidable. the defendant or his It is also ordered that servant, agent, other

persons are restrained by permanent injunction to not restrain of the the said applicants land and of also getting not to

income

dispossess the applicants and not to make any obstruction. decree were This passed judgement by the and trail order, Court and on

7.9.2010.

A copies of the said judgement and

order, and decree dated 7.9.2010 are annexed hereto and marked as Annexure-A colly to this application. FACTS

3.The

brief

facts

leading

to

the

present

application are as under:3.1

The applicants preferred Regular Civil Suit No.40/2001 before the Court of 4th Additional Sr. Civil Judge, Palanpur, District permanent Banaskantha, injunction and praying for

declaration

of the ownership by virtue of adverse possession. present forefather land paiki It is the case that of the

applicants was in

their of the

possession Survey 1, 8

bearing

Revenue Acr.

No.81, gunthas

admeasuring

and after that the present applicants are in possession of the land in

question. land. In

The land is an agricultural the said suit, it was

specific case of the applicants that the applicants are in possession of

the land in question, since long and the said land was in possession of

their

ancestors.

The

applicants

further submit that in the said suit documentary as well as oral evidence were also advised. The written

arguments were also filed in the suit and the learned Judge, after hearing
6

the

Advocates was

for pleased of

the to

respective decree the

parties, suit in

favour by

the and

present order

applicants

judgement

dated 7.9.2010. judgement applicants owner by and came

By virtue of the said order, to be the present as the

declared of

adverse

possession

land in question.
3.2

The applicants further submit that the application Exh. 174 dated 7.9.2010

was filed by the defendants asking for suspension judgement of and the order. effect The of the

learned

Judge below the said application was pleased to pass an order on 7.9.2010, suspending the operation of the order till 6.10.2010 on condition that the defendant Rs.50,000/will and execute will a bond of the

maintain

status-quo qua the land in question. In furtherance of the said order, the defendant had also executed the bond below Exh. 176. Copies of the

Application Exh. 174 and order below it as well as the Application Exh. 176 are annexed hereto and marked as
7

Annexure-B colly.
3.3

The

applicants

submit

that

the

defendant of the suit preferred appeal before the District Court being Appeal No.36/10. admitted urgent and The in appeal Exh.5 notice came to be

Application, was issued.

show-cause

Here it is pertinent to note that no stay order was granted by the District Court below Exh. 5 Application at the relevant point of time. memo of appeal are as Copies of the as Exh. 5

well

Application

annexed

hereto

and

marked as Annexure-C colly.

3.4

The applicants further submit that the Exh.5 application filed in the appeal came to be heard and vide order dated 6.1.2011, the learned Principal

District Judge, Banaskantha District, Palanpur was pleased to stay the

operation of the decree passed by the learned 4th Additional Sr. Civil Judge, Palanpur in Regular Civil Suit

No.40/2001 on 7.9.2010. said marked order as is annexed

A copy of the hereto Here it and is

Annexure-D.

pertinent to note that the judgement and order passed by the trial Court in Regular Civil Suit No.40/10 was not

stayed and only the operation of the decree was stayed, meaning thereby the position, which was prevailing had to prevail and parties are bound by the same.
3.5

The applicants further submit that all of a sudden, on 12.3.2012, the

opponents herein came to the land in question with JCB Machine and tried to take over the possession of the land in question by removing the structures forcefully and had removed sheds,

walls, and had also made severe damage to the standing The crops of the were to the the The

applicants. rendered suffer conduct part of

applicants less on and had of on

shelter loss

huge and the

account approach

illegal

opponents

herein.

applicants further submits that on the very day, the applicants made an

application to the District Collector with regard to the of illegal the and

forceful

action

opponents
9

herein.

copy

of

the

said

application dated 12.3.2012 is annexed hereto and marked as Annexure-E.

3.6

The

applicants the the

further

submit Court of

that has the and

though decreed

learned suit and

trial in

favour

applicants,

the

judgement

order is not stayed by the appellate Court, the opponents and herein have

deliberately

willfully

disobeyed

the said judgement and order and had entered applicants dispossess into the land so of as At the to this

forcefully the

applicants.

stage, the applicants beg to draw the attention towards learned the of this Honble order The Court of the

concluding Court.

trial

Opponents

herein have overreached the process of the Court and have willfully the and

deliberately

disobeyed

judgement

and order passed by the trial Court dated 7.9.2010. also addressed The applicants have the complaint to the

D.S.P., on 14.3.2012 with a copy of the Police Inspector, A copy Collector of the and said
10

Mamlatdar.

application dated 14.3.2012 is annexed hereto and marked as Annexure-F. 3.7 The applications most humbly that and the

respectfully applicants citizens possession since long. the of of

submit are the

law-abiding and in are in

India the

land

question

Even the forefathers of were possessing the The

applicants

land in question since 1947-48.

possession of the land in question was with the forefathers of the applicants and now with the applicants.
3.8

The applicants further submit that the applicants were being harassed by the Government Authorities time and again and the applicants, having left with no option, had to approach the trial Court by filing praying Regular for Civil Suit as

No.40/01

declaration

owner by virtue of adverse possession and also for permanent injunction.

3.9

The

trial

Court, all

after the

taking

into facts

consideration

relevant

and also the documentary as well as the evidence, was pleased to decree
11

the

said

suit and

in has

favour

of

the the

applicants

declared

applicants the owners of the land in question also by adverse the possession passed and by

declared

orders

various authorities as false, illegal and voidable. trial Court At the same time, the has also ordered the

defendants of the suit or his servant, agent and other persons, by permanent injunction not to restrain the

applicants from getting the income of the land in question and also not to dispossess the applicants and no to

make any obstruction in the way of the applicants. The judgement and order

passed by the trial Court is as clear as day light. note that in Here it is pertinent to appeal filed by the

defendant of the suit, below Exh. 5 application, Court was the Honble to District stay the

pleased

operation of the decree passed by the learned trial Court till the disposal of the appeal, meaning thereby the

judgement and order stands as it is and only what is stayed is the

12

operation of the decree.

Here it is

pertinent to note that the applicants are in possession since long of the land in

question

and,

therefore,

also the order of the Honble District Court would be of no consequence and there is no question of execution of the decree on the said count. even order till date, by holds by the the the the judgement trial field. trial Thus, and Court The Court

passed and

subsists

declaration

made

are as clear as day light and the same is in force till date. Herein it is

pertinent to note that the order below Exh. 5 in and appeal till was passed on

6.1.2011

12.3.2012,

knowing

fully well that the order passed by the trial Court holds the field the opponents have not done anything and all of a sudden came on 12.3.2012 Machine the and

opponents

with

JCB

other vehicles and forcefully entered into the land of the applicants. Opponents shed of destroyed the the the The

residential and also means.

13

applicants by

removed

walls

illegal

The

Opponents crops

have and

also

damaged tried

the to

standing

have

dispossess the applicants, who are in lawful possession and ownership of the land in question. showing the Relevant same are

Photographs

annexed hereto and marked as AnnexureG. The Opponents knowing fully well

the judgement and order passed by the trial Court have willfully the and said the order have

deliberately judgement contempt passed and of

disobeyed have

committed and and

the

judgement Court

by

the

trial

also tried to overreach the process of Court. The Opponents have no honour

towards the order passed by the trial Court and in sheer disobedience of the judgement trial and order have passed in by the

Court

acted

illegal

manner for some mala fide and oblique purpose shed, and walls removed and of the residential damaged the

also the

standing making

crops the

applicants, to suffer

applicants

further financial loss. were knowing that

The Opponents Court has

14

the

restrained the Government authorities to dispossess the applicants, have

acted in such a fashion to dispossess the applicants from the land in

question and to remove the same from the place in question. requested The the

applicants,

though

opponents not to commit such act, the opponents kept doing the same and by such an act, committed the breach of the judgement and order passed by the trial Court. are That after the the Government applicants wanted from to the

authorities and by any

means

them

dispossess

the

applicants

land in question. part of the are

Such an act on the of in the law

authorities impermissible

Government

and such high-handed act and illegal action cannot be tolerated in the

State of law where the law as well as order passed by the lawful authority prevails and stands at the hierarchy. The opponents have committed the

contempt of process of Court and have even not though of the it fit to take Court
15

permission

appellate

where That

the even any

appeal the

is

still

pending. have not

authorities to the

issued before The

notice such have

applicants actions. into the

doing

illegal entered

opponents

land of the applicants without prior intimation communication applicants act. and was no notice to or the

addressed doing such

before

illegal

That the Government authorities

and the opponents are forbidden by law to commit such act especially when the proceedings are pending before the

appellate Court and the judgement and order passed by the learned Trial

Court still holds the field.

3.10

That

the

opponents

have

abused

the

process of Court and have taken the law in their hands. The opponents

have committed willful and deliberate disobedience and have acted in illegal manner, rendering the applicants The

shelter less in the hard days.

applicants, who have the judgement and order in their favour have to suffer a lot on account of the illegal action and deeds of the opponents.
16

3.11

The opponent No.1 is an authority, who under the control of the State is not expected handedness to and act any such manner. high The

oblique

opponents are required to be punished under the Contempt of Courts Act for such a high-handed and illegal action. In the case of Vijaykumar v. DIG of Police Criminal and Law Anr., reported 2018, in 1987

Journal

Honble

High Court of Kerala has observed that the essence is of no power in to the punish larger any the to

contempt public unlawful

doubt of

interest

preventing with and

interference of

administration

justice

uphold the dignity and grandeur of the law . The applicants further submit

that this Court as well as the Honble Apex Court, in the case of Rama Narang v Ramesh Narang and Anr., reported in 2007(1) GLR, 66 with has made several to the

observations

regard

contempt proceedings. further Honble Honble submits High Apex that

The application similarly as well as the the of

17

Court Court,

vide

catena

decisions have made observations with regard to the contempt proceedings and have invoked the contempt jurisdiction to punish the contemnor, who have

abused the process of Court and has disobeyed the judgement and order

passed by the Court.

The applicants

crave leave to refer to and rely upon the various judgements at the time of hearing of this application.
3.12

The applicants further submit that the opponents have entered into the land of the applicants and, could to without any the any higher

intimation opponents

therefore, not make the

representation authorities. 3.13

The applicants further submit that the applicants Honble are approaching the this of

Court

within

period

limitation.
3.14

The applicants further submit that the opponents authorities position, to and have the not Government restored the prior the
18

which

was

prevailing

12.3.2012

and

have

committed

contempt of the judegement and order passed by the trial Court and also

have committed the abuse of process of the Court. 3.15 The applicants who submit are that the

applicants

rendered

shelter

less are left with no option but to approach this Honble Court by filing this application. 3.16 The applicants have no other

alternative efficacious remedy, except to approach this Honble Court by way filing the present application.
3.17

The

applications have

submit filed

that any

the other

applicants

not

any writ petition and/or application, on the subject matter of the present application, before this Hon'ble Court or before any other Court, including the Hon'ble Supreme Court of India,

save and except the one stated herein above. PRAYERS

4. The

applicants,

therefore,

most

humbly

pray

that:-

19

(A)

This Honble Court may be pleased to admit and allow this application.

(B)

This Honble Court may be pleased to initiate proceedings against the

opponents under the Contempt of Courts Act, 1971 for committing willful and deliberate contempt of the judgement

and order passed by the trial Court and also for abuse of process of law and further be pleased to punish the opponents for the same. (C) This Honble Court may be pleased to direct the of complete opponents the to contempt purge by

themselves reporting

compliance

of the

judgement and order of the trial Court and to restore the position, which was prevailing prior to 12.3.2012 at their own cost and consequence.

(D)

This Honble Court may be pleased to issue necessary directions to the

opponents authorities which was

and/or to restore prevailing

appropriate the position, prior to

20

12.3.2012

at

their

own

cost

and

consequence. (E) Pending hearing and final disposal of this may application, be pleased to this to the Honble Court

issue

necessary and/or

directions

opponents

appropriate authorities to restore the position, to which at was prevailing own prior and

12.3.2012

their

cost

consequence.

(F)

This Honble Court may be pleased to grant any other and further reliefs, as the nature and circumstances of the

present case may require.

AND FOR WHICH ACT OF KINDNESS AND JUSTICE THE PETITIONER, AS IN DUTY BOUND, SHALL FOR EVER PRAY. PLACE: DATE:__/3/2012 ( ) (ADVOCATE FOR APPLICANTS)

AFFIDAVIT I,_Ismailbhai Isabbhai __________________________ ,

Aged ___ years, Adult, the applicant No.1 herein, do hereby solemnly affirm and state on oath as under:
21

5.

That I have been read over and explained all the averments and contentions in made in the the my

present statement

petition of

Gujarati are as

and per

facts

instructions.
6.

I state that what is stated in paragraphs No. 1 to ___ are and true belief, to and my I knowledge, believe the

information

same to be true and paragraphs ___ contains prayer clause. 7. That the annexures appended to this petition are true copies/typed copied/xerox copies of their originals of which they purported to be copies. I state that no part of this affidavit is false and nothing Court. SOLEMNLY AFFIRMED day of March, at Ahmedabad on this _______th material is suppressed from this Hon'ble

2012. (D E P O N E N T)

Explained and interpreted to the Deponent by me: (Advocate) Identified by me: Clerk to Advocate for the Applicants Code No.
22