Gujarat High Court
Inland Realities And Finstock Private ... vs Anil M Munshi on 5 August, 2025
NEUTRAL CITATION
C/FA/452/2024 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 452 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
Yes
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INLAND REALITIES AND FINSTOCK PRIVATE LIMITED
Versus
ANIL M MUNSHI & ORS.
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Appearance:
MR SANDIP C SHAH(792) for the Appellant(s) No. 1
MR APURVA R KAPADIA(5012) for the Defendant(s) No. 1
NOTICE SERVED BY DS for the Defendant(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 05/08/2025
ORAL JUDGMENT
1. ADMIT. Mr.Apurva Kapadia, learned counsel waives service of notice of admission on behalf of the respondent/s.
2. With the consensus of learned counsel appearing for the respective parties, the present appeal is taken up for final hearing. Learned counsel for the appellant has supplied the paper-book compromising of the record of the trial Court and on perusal of the relevant order passed by the trial Court which is necessary to refer herein.
3. Present appeal is filed by the appellant under Section 96 of the Civil Procedure Code against the judgment and decree dated Page 1 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined 09.11.2023 passed by the learned Judge, Court No. 24, City Civil Court, Ahmedabad (hereinafter be referred to as "the trial Court") in Civil Suit No. 4699 of 1998 whereby the trial Court dismissed the suit.
3.1 Brief facts giving rise to the present case are as under:-
3.2 It is the case of the appellant that the appellant is having ownership and possession of the property situated at third floor entirely admeasuring 7330 square feet carpet area in the property known as Abhijay Complex in Final Plot No. 251, T.P. Scheme No.3 in the city of Ahmedabad (hereinafter be referred to as "the suit property") and the possession of the suit property was handed over to the appellant by the respondents and since then the appellant has become the owner of the suit property. It is the case of the appellant that the respondents were trying to take the possession of the suit property forcibly and trying to get entered the third party illegally and also trying to sell the suit property to the third party. It is further the case of the appellant that the appellant issued notice to the respondents and the respondents were trying to grab the possession of the suit property forcibly from the appellant. It is the case of the appellant that the appellant filed the suit before the trial Court seeking to restrain the respondents, their men, servants, agents etc from taking the possession of the suit property forcibly from it without following due procedure of law.
3.3 That the respondents have filed the written statement at Exhibit 14 wherein they have denied all the contentions made in the plaint.
3.4 That after hearing the parties and considering the evidence, the trial Court framed the issues at Exhibit 25, which reads thus:-Page 2 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025
NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined (1) Whether the plaintiff proves that the suit property is owned by them and the defendants handed over the possession of the property on date 24.12.1997?
(2) Whether the plaintiff proves that defendant nos.2, 3 & 4 are association and the plaintiff has been members of the same? (3) Whether the plaintiff proves that the defendants are trying to usurp the possession of the suit premises forcibly? (4) Whether the plaintiff is entitled to get the relief as claimed for?
(5) What order and decree?
3.5 The trial Court answered the aforesaid issues in the negative.
3.6 The trial Court has, after evaluating the evidence on record and
hearing the respective parties, dismissed the suit.
4. Being aggrieved and dissatisfied with the judgment and decree, the appellant has preferred this appeal.
5. Heard Mr.Sandeep Shah, learned counsel for the appellant and Mr.Apurva Kapadia, learned counsel for the respondent/s. Perused the material on record.
6. Mr.Shah, learned counsel for the appellant has submitted the same facts which are narrated in the memo of appeal and has submitted that the trial Court has committed serious error of law and facts while passing the impugned judgment and decree whereby the suit came to be dismissed. He has submitted that the trial Court has not properly evaluated the evidence placed on record by the appellant and also not considered the documents which were referred and relied by the appellant along with the plaint nor considered the Page 3 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined provision of law more particularly the provision of the Specific Relief Act whereby the appellant filed the suit for permanent injunction. Mr.Shah, learned counsel has submitted that the appellant has sought the relief in the suit to restrain the respondents, their men, servants, agents etc from taking the possession of the property situated at third floor entirely admeasuring 7330 square feet carpet area in the property known as Abhijay Complex in Final Plot No. 251, T.P. Scheme No.3 in the city of Ahmedabad forcibly from it without following due procedure of law. He has submitted that though the suit was filed in the year 1998, the appellant moved an application at Exhibit 41 for production and exhibit the documents in the year 2022 which came to be rejected by the trial Court vide order dated 14.09.2022. He has submitted that before filing the suit, the appellant had issued the notice which was replied by the respondents and specific admission was made by the respondents in the reply with regard to the possession receipt and share certificate issued in favour of the appellant. He has submitted that the possession was handed over on 24.12.1997, however, the trial Court has not considered this fact while evaluating the oral as well as documentary evidence.
6.1 In support of his submissions, Mr.Shah, learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Krushna Chandra Behera and others Vs. Narayan Nayak and others rendered in Civil Appeal No. 159 of 2025 dated 06.01.2025 wherein the Hon'ble Supreme Court has held and observed in para - 16 as under:-
"16. We take notice of the fact that the only ground that weighed with the High Court in allowing the Second Appeal and thereby dismissing the suit of the plaintiffs is that the plaintiffs failed to pray for any declaration and their suit Page 4 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined simpliciter for injunction according to the High Court could not be said to be maintainable."
6.2 Mr.Shah, learned counsel has also referred and relied upon the decision of this Court in the case of Rekhaben Wd/o. Pravinbhai Amritlal Patel Ors. Vs. Patel Baldevbhai Amrutlal reported in 2023 (4) GLR 3083 and submitted that the appeal deserves to be allowed and the judgment and decree deserves to be quashed and set aside.
7. Mr.Kapadia, learned counsel for the respondents has submitted that the trial Court has rightly dismissed the suit since the appellant was unable to prove the case. He has submitted that though the suit was filed in the year 1998, till 2017 no documentary evidence was produced prior thereto, the appellant has preferred an application for notice of motion wherein the Court has observed that since on the date of filing of the suit, the building was not completed and the Municipal Corporation, Ahmedabad has not issued a Building Use Permission. He has submitted that before entering into the merits of the matter and granting any injunction in favour of the appellant, third party i.e. Piramal Financial Services Limited has moved an application before the concerned Court to implead itself as party defendant contending that defendants no.1 and 2 have taken the huge loan of finance from the proposed respondent and various shops and offices have been allocated in lie of the security of the said finance and there is every likelihood that the third party interest being jeopardizes by any order being passed by the Court and, therefore, it was proper as well as necessary party. He has submitted that the notice of motion was decided way back on 15.06.2001 whereby the Court has passed the order that the notice was to be decided on merits along with the Page 5 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined suit and no interim order was granted. He has submitted that the documentary list was filed along with the application to exhibit the documents which was also rejected and the same became final till the final decision of the suit, which was not challenged by the appellant and, therefore, under such circumstances, the appeal deserves to be dismissed and the judgment and decree deserves to be confirmed. In support of his submissions, Mr.Kapadia, learned counsel has relied upon the decision K.M. Krishna Reddy Vs. Sri Vinod Reddy reported in 2023 (10) SCC 248.
8. Considering the facts and circumstances of the case and the record and proceedings and perusing the judgment and decree and considering the issue involved in the present appeal and also perused evidence of witnesses more particularly evidence of Dhiren Laljibhai Gajjar at Exhibit 26, it appears that the suit was filed for permanent injunction without seeking declaration of the possession. Before dwelling into the facts of the case, the certain facts are required to be noted. From the record, it appears that the suit was filed by the appellant based upon the documentary evidence including notice, reply, possession receipt and share certificate. The case of the appellant rest upon the documentary evidence and since, the appellant had paid full consideration towards the suit property and as against that the share certificate issued by the Cooperative Society namely Shri New Shivshakti Apartment in favour of the appellant. That since the possession was handed over on 24.12.1997, the appellant was in possession of the suit property and was legal owner of the suit property and, therefore, the respondents or their agents, men, servants, agents etc may not disturb the possession of the appellant. The plaintiff has not narrated true and correct facts before Page 6 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined the trial Court and has suppressed the relevant material facts. Though the respondents have appeared before the trial Court and filed their written statement contending that they have already handed over the possession of the suit property and issued possession receipt. Unless and until the B.U. Permission was not granted by the competent authority, the respondents unable to handover the possession. It appears that the suit was filed due to collusion between the plaintiff and the defendants and this fact was not brought to the notice of either sides that the B. U. Permission was not issued till the date of filing of the suit. The property in question is concerned, there was no B. U. Permission issued by the competent authority. This fact came on record only when third party has applied before the trial Court for joining as party where all facts came to the notice of the trial Court wherein the trial Court has directed the Ahmedabad Municipal Corporation directed to post a security personnel round the clock till the hearing of the Notice of Motion. No building use permission was granted as the whole building was incomplete. The order was passed on 25.09.1998 by the trial Court meaning thereby that at the time of filing of the suit there was no B. U. Permission granted by the competent authority and, therefore, there was no question that the appellant was put in possession of the suit property by the respondents. Even the order dated 15.06.2001 passed below notice of motion was never challenged by the appellant before the higher forum and after almost 19 years of filing of the suit, the appellant has preferred the application at Exhibit 19 which was decided by the trial Court. An application at Exhibit 24 for exhibiting the documents filed by the appellant came to be rejected vide order dated 14.09.2022 by the trial Court after considering the relevant facts and it was after recording the reasons, which was never challenged by the appellant Page 7 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined and under such circumstances, the suit filed by the appellant for an ulterior motive / reasons and thus, the trial Court has not committed any error of facts and law in dismissing the suit.
9. This Court has perused the evidence of Dhiren Laljibhai Gajjar at Exhibit 26. This witness has deposed that he was the Director in the company and he has information about the disputed transaction, the company has authorized him vide Resolution of Authorization dated 20.09.2006 in the meeting of Board of Directors to give deposition in this plaint as well as to represent the company in any legal proceedings and to fulfill necessary formalities. In the extract of the aforesaid resolution, there was round seal of the company and bears the signature of Mr.Harivadan T. Patel as the Director of the company, the signature identified by him. He has also deposed that similarly, as the company is a registered company under the provisions of Indian Companies Act, 1956. He has brought the original Certificate before the Court for being compared by the advocate of the defendant. Original Certificate is under the custody of company. It is deposed that as the company got registered, there was requirement for registered office premises, therefore, he, on behalf of the company and Mr. Harivadan T. Patel, the Director of company came to know upon inquiring that, the defendant no. 1 to 4 have initiated a scheme named Abhijya Complex in Navrangpura area of Ahmedabad. Further, upon inquiry he came to know that defendant no. 1 was an Architect and Developer by profession and had purchased final plot no. 2 to 4 in the District - Sub - District City Taluka Shekhpur-Khanpur T.P. Scheme no. 3 and started an office for the scheme of offices and shops with the name of building by the name Abhijya Complex. The said Adarsh Co-operative Society Ltd. had transferred the property of sub-plot Page 8 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined nos. 1 and 8 in the favour of defendant no. 2 to 4 and photocopy of the share certificate no. 35 of the property of sub plot no.8 has been produced vide Mark-24/3 in this regard. Similarly, photocopy of the Agreement for Development of the Scheme, dated 24.4.96 executed between the Defendant no.1 and the Defendant nos. 2 to 4 for the development of scheme named Abhijya Complex on the land of sub- plot nos. 1 and 8 of the said land has been produced by the plaintiff. The photocopy of aforesaid documents have been given to him by the defendant no. 1 on showing the original to him and by taking photocopy of the same in his office when he went to his office to pay the consideration amount for the property on third floor of the place in dispute, which is having 7330 sq. ft carpet area through cheques on 24.04.1997, to be purchased for the purpose of office of the plaintiff. The aforesaid original documents are with the defendant.
9.1 As the plaintiff had requirement of office premises and in the same time frame, the defendant nos. 1 to 4 having floated the scheme with name "Abhijya Complex" in the Navrangpura locality, he, the plaintiff was convinced by the scheme and booked the office on third floor of the Abhijya Complex having 7330 sq. ft. area and paid the defendant no.1 in this case amount of Rs. 25000/- (Rupees Twenty Five Thousand) as consideration amount and booking amount in lieu of booking and defendant no.1 allotted the office premises having 7330 sq. feet area on third floor at that day itself and allotment letter for this regard was handed over to him by the signature of defendant no.1. he, the plaintiff, has brought the original Allotment letter today before the court for verification by the advocate of the defendant. Defendant no. 1 having obtained significant consideration amount for the premises under dispute, and by delaying the construction of Page 9 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined premises under dispute, the plaintiff often asked to the defendant regarding the disputed premises. Thus, the Defendant No. 1 furnished a receipt of receiving Rs.42,75,000/- (Rupees Forty Two Lakh Seventy Five Thousand only) from him on 23.12.1997, subject to the conditions of Development Agreement executed with the Defendant Nos. 2 to 4. He has submitted the notarized certified copy of the said receipt. He has brought the said original receipt today in this Court for its comparison by the advocate for the defendant. The said receipt bears the signature of the Defendant No. 1, which was affixed by the Defendant No. 1 in his presence and he identified the same. As the defendant in this case was delaying the handover of possession of the premises under dispute to him after completing its construction, and since he was in immediate need of the premises under dispute, the Defendant No. 1 in this case has handed over possession of the premises under dispute to me on 24.12.1997. The Defendant No. 1 in this case provided him a Possession Receipt on 24.12.1997 regarding handing over possession of the said premises. He has submitted a notarized certified copy of the said Possession Receipt. The said Possession Receipt bears the signature of Anil M. Munshi, the Defendant No. 1, for and on behalf of the defendants, and that of Harivadanbhai T. Patel, Director of the company for and on behalf of the plaintiff company. He identified the said signatures. On the said date, 24/12/1997, the Defendant No. 1 handed over possession of the premises under dispute in his presence to Harivadanbhai T. Patel for and on behalf of the plaintiff company; and Harivadanbhai on behalf of the company and Anil Munshi on behalf of the defendants affixed their signatures to the said Possession Receipt in his presence. He has brought the said Possession Receipt in original today before the Court for verification.
Page 10 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined 9.2 Thereafter, as the defendant No. 1 in this case obtained a
substantial amount as a sale consideration for the premises under dispute from him and provided its possession, the Defendants No. 2 to 4 made me a member of their association; and allotted him a share certificate with denomination of Rs.100.00 in the share certificate no. 6 of the said association. Among all the share certificates, the certificate bears the signature I.D. Modi, the President of the Defendant No. 2. Similarly, the share certificates under Mark 24/9 and 24/10, which were given to me by the Defendant Nos. 3 and 4; and they bear the signatures of Anil M. Munshi, their President on their behalf. He has brought all of the said share certificates in original today before the Hon'ble Court for verification by the advocates of the defendants; and all these original documents have been verified by the advocates of the defendants. Despite the payment of substantial part of the sale consideration amount of the premises under dispute made to the defendants by him, since the defendants did not complete the construction in the stipulated time and are not finishing the work by keeping the construction incomplete, he, took possession of the premises under dispute on the basis of responsibility taken by the plaintiff to complete the work. He had the work of the said premises under dispute completed. However, the Defendant No. 1, acting upon his ill motive, started bullying and using the force to usurp possession of the premises under dispute from him and attempting to usurp possession of the premises under dispute, he served the notice to the defendants on 28.08.1998. The notice bears the signature of Mr. P.P. Gandhakwala, his advocate, representing him as a plaintiff. The said notice was served on the letterhead of P.P. Gandhakwala. Mr. Vinochandra Ambalal Shah, advocate for the Page 11 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined respondents, responded to the said notice on 02.09.1998; wherein the fact was admitted that the defendants in this case have already handed over the premises under control to him. Despite the respondents responded to the notice as elaborated above, and as they were acting upon ill motive of usurping the possession, he filed a suit in the Court and sought relief as mentioned in the Para 7 of the suit. Therefore, he humbly requested the Court to grant the relief as sought in the Para 7 of the suit application.
10. From perusal of the cross-examination of the evidence of Dhiren Laljibhai Gajjar at Exhibit 26, it appears that as on 06.05.2022, it was the admission that the appellant was not in possession of the suit property, meaning thereby that the suit was filed by the appellant was not tenable in the eyes of law even the date on which the suit was filed and, therefore, the trial Court, after considering all the facts rightly dismissed the suit. Even if this Court look at the decision of the Hon'ble Supreme Court in the case of K.M. Krishna Reddy (supra), it appears that in the said decision, the Hon'ble Supreme Court has held and observed in paras 16 and 17 as under:-
"16. It is obvious that there was no issue involved about the title of the plaintiff and his father. It is not as if the respondents had set up a title in themselves or were claiming through somebody who was claiming the title. Their plea was of adverse possession against the appellant, which presupposes that the appellant was the owner. When in a suit simpliciter for a perpetual injunction based on title, the defendant pleads perfection of his title by adverse possession against the plaintiff or his predecessor, it cannot be said that there is any dispute about the title of the plaintiff. Hence, the plaintiff need not claim a declaration of title in such a case as the only issues involved in such a suit are whether the plaintiff has proved that he was in possession on the date of the institution of the suit and whether the defendant has proved that he has perfected his title by adverse possession. Therefore, in the Page 12 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined case at hand, it was not necessary for the appellant to claim a declaration of ownership. There was no cloud on his title. Therefore, the suit, as originally filed, was maintainable.
17. Only two questions were required to be dealt with. The first was whether the appellant had established that he was in possession of the suit property on the date of the institution of the suit. If the appellant fails to prove this issue, the suit will be liable to be dismissed. The burden was on the respondents to prove their plea of adverse possession, as there was a counter-claim seeking a declaration of ownership based on adverse possession. The counter-claim is in the nature of a cross-suit."
11. In the present case, it is an admitted fact that on the date of institution of the suit, the appellant was not in possession of the suit property. Even till the institution of the suit, the B.U. Permission was not granted by the competent authority, which fact was suppressed by the appellant. It appears that the building was incomplete and possession was not given to the appellant. In view of the observation made by the Hon'ble Supreme Court in para - 17 of the aforesaid decision, the suit itself is liable to be dismissed and the trial Court has rightly dismissed the suit. In fact, the appellant had not come with the clean hand before the trial Court and suppressed the material facts and there was no documentary evidence which led to decide by the trial Court that the appellant was/is a real owner and having in possession of the suit property after paying full consideration. The relevant documentary evidence did not come on record. It is also to be noted that though there is huge loan of finance obtained by the developers and without disclosing all these facts, the suit was instituted collusion with the respondents. Therefore, third party has given a huge financial assistance to the developer when the third party came to know about the filing of the suit immediately moved Page 13 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025 NEUTRAL CITATION C/FA/452/2024 JUDGMENT DATED: 05/08/2025 undefined the Court and filed the application and bring all these facts to the Court and, therefore, the Civil Court has rightly passed the order to deploy the security person of the Ahmedabad Municipal Corporation with a view to restrain all the parties for illegal trespasser or taking the possession in high handed manner. Thereafter, the trial Court has not inclined to grant any interim relief below application at Exhibit 5 and the appellant has not challenged that order till the final disposal of the suit which is decided almost for 25 years and even at the time of oral evidence of the appellant recorded in 2002, the appellant has admitted the fact that it was not in possession of the suit property and, therefore, considering all these facts, the trial Court has rightly dismissed the suit and not committed any illegality or infirmity in passing the judgment and order. The decision in the case of Rekhaben Wd/o. Pravinbhai Amritlal Patel (supra) relied upon by the learned counsel for the appellant is not applicable to the facts of the present case as the facts which are referred in the said decision are completely different and, therefore, the said decision is not helpful to the appellant.
12. On perusal of the record, I am of the opinion that the trial Court has not committed any illegality or infirmity in the judgment and order and thus, the appeal being meritless deserves to be dismissed.
13. In the result, the appeal is dismissed. Record and proceedings, if any, be transmitted back to the trial Court forthwith. There shall be no order as to costs. Pending civil application stands disposed of accordingly. Interim relief, if any, granted earlier shall stand vacated forthwith.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 14 of 14 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:21 IST 2025