Gujarat High Court
Vitrag Corporation vs Gurmitkaur Premjit Bhatia on 7 July, 2025
NEUTRAL CITATION
C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025
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Reserved On : 24/06/2025
Pronounced On : 07/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 136 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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VITRAG CORPORATION & ORS.
Versus
GURMITKAUR PREMJIT BHATIA & ORS.
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Appearance:
MR.D K.PUJ(3836) for the Appellant(s) No. 1,2,3,4,5,6
DELETED for the Respondent(s) No. 10,3,4,5,9
NOTICE SERVED for the Respondent(s) No. 6
NOTICE UNSERVED for the Respondent(s) No. 8
SERVED BY AFFIX(N) for the Respondent(s) No. 7
SUMIT K PRAJAPATI(8867) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. ADMIT. Learned advocate Mr.Sumit K. Prajapati waives service of notice on behalf of respondent No.1 and 2. The presence of other respondents are not required for adjudication of the present matter.
2. The present Appeal from order is filed under order XLIII Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC") challenging the judgment and order dated 12 th November, 2020 passed by Additional City Civil Judge, City Civil Court Ahmedabad essentially passed below Exh.112 -113 in Civil Suit 132 of 2013.
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NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined
3. The parties will be referred to as per their original position. The respondent no.3 to 5, 9 and 10 of present appeal are deleted as per various orders passed by this Court.
4. THE SHORT FACT OF THE CASE 4.1. The Appellants herein are defendant Nos. 9 to 14, whereas respondent no.1 and 2 are original plaintiffs and respondent no.3 to 10 are original defendant nos. 1 to 8. 4.2. The plaintiffs by way of filing suit in question seeking various prayers in relation to Title, Declaration, Probate Certificate, Possession, Damages, Mesne profits and permanent injunction in relation to suit property as described in Schedule
- A to E in the suit.
4.3. So far as the controversy involved in the present appeal, suit property, which is shown in Schedule-A of Suit is the subject matter, which is in relation to an immovable property situated at survey No.612, Plot No.57 ad-measuring 195 Sq.Mts. and also at Survey No. 612, Sub-plot No.58, ad- measuring 186 Sq.Mts., in all 381 Sq.Mts. 4.4. The relationship between the plaintiffs and respective Page 2 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined defendants appears to be that plaintiff Nos.1 and 2 happen to be daughter-in-law and grand-son of late Trilochansing Dayalsing Bhatiya (hereinafter referred as 'deceased'), whereas defendant Nos.1 and 4 happen to be son of deceased, defendant no.2 happens to be wife of defendant no.1, defendant no.3 happens to son of defendant no.1 and defendant no.5 to 8 are sister of defendant no.1 and 4. Whereas, Appellants - defendant nos.9 to 14 are subsequent purchasers of suit property in question shown as Schedule- A in the suit.
4.5. It is the case of plaintiffs that deceased was owner of suit properties bequeathed it in favour of plaintiffs by way of registered Will on 30.01.2009 and on death of deceased, which took place on 18.09.2011, on the strength of his Will executed in favour of plaintiffs, they become owner of suit properties mentioned in the suit. Thus, necessary declaration and injunction sought for in the suit.
4.6. It has been further stated in the suit and remained undisputed that deceased had executed an agreement for sale Page 3 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined (hereinafter referred as "ATS") on 27.08.2003 in favour of one
- Ranjitsing Mohansing Dhillon (hereinafter referred to as 'Mr. Dhillon'), who had filed Civil Suit No. 2250 of 2009 against deceased seeking specific performance of ATS, which came to be decreed in his favour on 28.04.2010 as there was consent given by deceased for execution of sale deed in relation to suit property at Schedule - A. The execution of sale deed by deceased in favor of Mr. Dhillon took place on 28.05.2010. So, during his life time, by virtue of said sale deed, deceased had transferred his title over suit properties in favour of Mr. Dhillon.
4.7. It further appears that defendant no.1 had challenged the aforesaid sale deed executed by deceased in favour of Mr. Dillon on 28.05.2010 by way of filing Civil Suit no. 2971 of 2011.
4.8. As per the case of defendant no.1, prior to execution of sale deed, deceased had already released his right, title and interest from Schedule - A property of suit in favour of defendant no.1 by way of written declaration dated Page 4 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined 05.12.2005, which was duly notarized and accordingly requested Revenue Authority to mutate the name of defendant no.1 as a sole owner instead of joint owner of Schedule-A property of suit. It further appears that on the basis of such declaration, the name of deceased from record of right i.e. Form No.6 maintained by Revenue Authority, has been deleted on 06.12.2005 vide Entry No.19874.
4.9. It appears from the record that aforesaid Civil Suit No.2971 of 2011 came to be decreed with consent of parties, whereby, Mr. Dhillon has accepted the sole ownership of defendant no.1 in relation to Schedule-A property of suit. It has been further declared by Mr. Dhillon in favour of defendant no.1 that the sale deed executed by deceased on 28.05.2010 in favour of Mr. Dhillon would not derive any title in favour of Mr. Dhillon as he was convinced that at the time of execution of aforesaid sale deed by deceased in his favour, deceased was not holding any ownership. Thus, in view of the consent terms, arrived between the Defendant No.1 and Mr. Dhillon, aforesaid suit came to be decreed with consent in Page 5 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined favour of the Defendant No.1.
4.10. It is further case of plaintiff that during life time of deceased, he had objected aforesaid revenue entry mutated in the name of Defendant no.1, thereby declared him as sole owner and so also filed Criminal Complaint against him. Nonetheless, in none of such attempt, the deceased and / or plaintiff could get succeed thereby, such entry was never disturbed and remained as it , which confirmed sole ownership of Defendant no.1.
4.11. It further appears that on the strength of such ownership, the Defendant no.1 first executed gift deed in favour of his wife, i.e., Defendant no.2, which was executed on 01.01.2013, in relation to Schedule - A property. The name of Defendant no.2 has been duly mutated in record of right i.e., Form no.6. 4.12. At that stage, the suit in question came to be filed, wherein aforesaid gift deed is also challenged but surprisingly, no declaration has been sought that declaration dated 05.12.2005 alleged to have been executed by deceased waiving his right from Schedule-A property in favour of defendant no.1 Page 6 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined is null and void and consequently, entry made on 06.12.2005 vide Entry No.19874 in the record of rights (Form No.6) in favour of defendant no.1, whereby, declared him as a sole owner, be declared as null and void.
4.13. It appears that during the pendency of the suit, till passing of impugned order, there was no injunction granted in favour of plaintiffs but they have registered a lis pendence with the concerned Registrar in relation to Schedule-A property.
4.14. It so appears that during the pendency of the suit, defendant no.2 has executed registered sale deed of Schedule-A property in favour of Appellants - defendant nos. 9 to 14 on 01.10.2019. Accordingly, they are joined in the suit and the suit is amended.
4.15. Thus, Appellants - defendant nos. 9 to 14 having purchased the Schedule-A property of suit, plaintiffs have preferred an injunction application filed below Exh. 113 on 08.11.2019, wherein, they have prayed that Appellants - defendant nos. 9 to 14 shall be directed not to transfer, Page 7 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined mortgage, gift, no charge and any type of encumbrances be created and also no change/ construction, and so also not use suit property in any manner, and they should not act in any manner, whereby, the right of plaintiffs would get damaged. Such prayer is worded in para 13-A of impugned injunction application, which came to be granted in toto by Trial Court.
5. Thus, feeling aggrieved and dissatisfied with the impugned order, Appellants - original defendant nos. 9 to 14 have preferred the present appeal.
6. SUBMISSION OF APPELLANTS - DEFENDANT NOS. 9 TO 14 6.1. Learned advocate Mr. D.K.Puj would submit that impugned order is ex facie erroneous, perverse and contrary to record required to be interfered with by this Court by exercising its appellate power under Order XLIII Rule 1 of CPC.
6.2. Learned advocate Mr.Puj would further submit that the Trial Court had misconstrued the fact that in a consent decree secured by defendant No.1 in his regular Civil Suit No.2971 of Page 8 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined 2011, whereby Mr. Dhillon has declared that his sale deed executed by the deceased is not valid and effective and Mr. Dhillon had not derived any ownership on the existence of such sale deed, the Schedule-A property would automatically vest with the deceased.
6.3. It is submitted that as per the consent terms, which are recorded in the consent decree dated 28.09.2012, more particularly, consent term No.2, which would clearly indicate that Mr. Dhillon, for having valid sale deed executed by the deceased during his lifetime in his favor, accepted defendant No.1 as the sole owner of the Schedule-A property, thereby giving up his right in favor of defendant No.1 in the Civil Suit No.2971 of 2011.
6.4. Learned advocate Mr. Puj would further submit that the Trial Court has completely misconstrued and misunderstood the consent terms agreed between defendant No.1 and Mr. Dhillon, whereby it has committed a gross error of law by granting an injunction in the month of November, 2020 in favor of the plaintiffs in their suit filed in the month of January 2013. Page 9 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025
NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined 6.5. Learned advocate Mr. Puj would further submit that defendant No.1 having been so declared and accepted as the sole owner by Mr. Dhillon, who had purchased the Schedule-A property from the deceased by way of sale deed, then on the strength of the Will of the deceased, no right, title, and interest accrued in favor of the plaintiffs. 6.6. It is submitted that the execution of the sale deed by the deceased in favour of Mr. Dhillon was undisputedly prior to his death; then, as on his death, when the property was already conveyed in favor of Mr. Dhillon, no right accrued in favor of the plaintiffs, being the alleged successors in interest as per the Will.
6.7. Learned advocate Mr. Puj would further submit that the revenue entry, which is questioned by the plaintiffs in the suit has not been disturbed by any of the revenue authorities in their challenge at the instance of the deceased and/or the plaintiffs and as on today, it stands. It is submitted that plaintiffs cannot questioned such entries by instituting suit. 6.8. Learned advocate Mr. Puj would further submit that such Page 10 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined revenue entry, as understood by the Trial Court as being for a fiscal purpose, is not a correct reading of such entry because it is mutated in the record of rights, i.e. Form No.6, as per the Gujarat Land Revenue Code, maintained by the Revenue Authority, which prima facie shows the right, title, and interest of a person holding land.
6.9. Learned advocate Mr. Puj would further submit that the declaration of the deceased dated 05.12.2005, though referred to by the plaintiffs in the suit, was not challenged in the suit proceedings; thereby, the plaintiffs are precluded from challenging the gift deed in favor of defendant No.2 by defendant No.1 and the subsequent sale in favor of the present appellants (Defendant Nos.9 to 14) by defendant No.2. 6.10. Learned advocate Mr. Puj would further submit that the reliefs which are prayed for in the suit are multi-fold, including a prayer for probate, which would disentitle the plaintiffs from securing all the reliefs by way of one suit, and as such, in the absence of any probate given in favour of the plaintiffs, no right to sue accrued in their favor, thereby they Page 11 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined cannot question the transactions which were executed between the defendants.
6.11. Learned advocate Mr. Puj would further submit that merely because the lis pendens has been registered by the plaintiffs after filing the suit, that would not give any right in favor of the plaintiffs to prohibit Appellants - defendant Nos.9 to 14 from using the Schedule-A property of the suit and an absolute stay as prayed for in para 13(a) of the impugned injunction application, so granted by the Trial Court, is unwarranted.
6.12. Learned advocate Mr. Puj, under the instructions of his client, makes a statement that Appellants - defendant Nos.9 to 14 will not transfer, sell, or alienate the Schedule-A property of the suit purchased by them from defendant No.2 in favour of any third party, but Appellants - defendant Nos.9 to 14 may not be injuncted from using it for their own purpose and/or from allowing it to be used by third parties on a lease/license basis till the pendency of the suit, and also may not be injuncted from reconstructing/repairing it. Page 12 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025
NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined 6.13. Making the above submissions, learned advocate Mr. Puj would request this Court to allow the present application. 7. SUBMISSION OF RESPONDENT NO.1 AND 2 (PLAINTIFFS) 7.1. Learned advocate Mr. Adil Mirza with learned advocate Mr. Sumit K. Prajapati would submit that as such, there is no error, much less any gross error of law, committed by the Trial Court while allowing the impugned injunction application, and thereby no interference is required by this Court. 7.2. Learned advocate Mr. Mirza would submit that the Trial Court has not only taken into account the entire set of facts but also passed a very detailed and reasoned order, whereby it cannot be contended by the appellants that it was erroneous and perverse.
7.3. Learned advocate Mr. Mirza would further submit that when the consent decree was passed in favor of defendant No.1 in his suit, whereby Mr. Dhillon gave up his right flowing from the sale deed executed by the deceased in favor of Mr. Dhillon, the Schedule-A property, which was part of Page 13 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined such sale deed, would revert back to the deceased, and on the strength of his Will, the plaintiffs would be entitled to receive such Schedule-A properties on the demise of the deceased. 7.4. Learned advocate Mr. Mirza would further submit that with regard to the alleged declaration by the deceased dated 05.12.2005, whereby he gave up his right in favor of defendant No.1 in relation to the Schedule-A property, it remains undisputed that during the life of the deceased, he questioned such declaration and also the entry executed on the strength of such alleged declaration in favor of defendant No.1. So, no right could have accrued in favour of defendant No.1, as such an alleged declaration requires compulsory registration as per Section 17 of the Registration Act, without which it is not otherwise admissible in evidence.
7.5. Learned advocate Mr. Mirza would further submit that Appellants - defendant Nos.9 to 14, with open eyes and having full knowledge about the pendency of the present suit, purchased suit property, as the plaintiffs has already registered a lis pendens of purchased the suit property. Now, they later Page 14 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined on, cannot raise any grievance when they are injuncted by the Trial Court as per the impugned order.
7.6. Learned Advocate Mr. Mirza would further submit that considering the entirety of the facts and circumstances of the case, this Court may not interfere with the well-reasoned order, as the present appeal is to be considered as an appeal on principle and not on facts.
7.7. Making the above submissions, learned advocate Mr. Mirza would request this Court to dismiss the present application.
8. Heard learned advocate Mr. D.K.Puj appearing for the appellants - Defendant Nos.9 to 14 and learned advocate Mr. Adil Mirza for Mr.Sumit K. Prajapati appearing for the respondent Nos.1 and 2 - Plaintiffs at length.
9. No other and further submissions are made.
10. THE POINT FOR DETERMINATION 10.1. The short question that falls for my consideration as to whether the impugned order passed by the Trial Court, whereby the prayer made in the impugned injunction Page 15 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined application filed below Exhibit 113 in Civil Suit No. 132 of 2013 was granted, is erroneous, perverse, arbitrary, and contrary to the provisions of law, or not?
11. ANALYSIS
12. The facts which are narrated hereinabove are not in dispute. It is true that this Court is required to examine the matter in a limited compass when it exercises its power under Order XLIII Rule 1 of the CPC. It is also true that this Court may not disturb a discretionary order passed by the Trial Court whereby an injunction was granted merely because another view is equally possible, unless it has been shown by the appellants that the order impugned in the appeal is so erroneous, perverse, arbitrary and/or contrary to the settled principles of law. The Appellate Court while exercising its power under Order XLIII Rule 1 of the CPC, such an order of injunction should not be disturbed routinely unless aforesaid criteria germane from impugned order.
13. After analyzing the aforesaid facts, going through the documentary evidence available on the record of the suit and Page 16 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined also submissions made by the learned advocates of the respective parties, I find following infirmities in the impugned order passed by the Trial Court, whereby Appellants - defendant Nos.9 to 14 were injuncted as prayed for in para- 13(A) of the impugned injunction application.
14. The Trial Court has committed a serious error of law by observing that once a consent decree was passed in the suit of Defendant No.1, i.e., Regular Civil Suit No.2971 of 2011, on 28.09.2012, whereby Mr. Dhillon gave up his right flowing from the execution of sale deed by the deceased in his favor, the deceased would automatically be entitled to be declared the owner of the Schedule-A property.
14.1. This would be a complete misreading of the consent terms arrived at between defendant No.1 and Mr. Dhillon, which are reproduced in the consent decree itself. The plain reading of consent term No.2 incorporated in the aforesaid consent decree would clearly show that Mr. Dhillon has accepted and declared that defendant No.1 become the absolute owner of the Schedule-A property and, having Page 17 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined accepted such fact, gave up his right flowing from the execution of the sale deed by the deceased in his favor (defendant No.1) on 28.05.2010. There is no whisper in any such consent terms that by giving up the right by Mr. Dhillon flowing from the sale deed executed by the deceased in his favor, thereby it would be any reversal of his title in favour of the deceased, as assumed by the Trial Court. Once, deceased in his life time sold suit property in favour of Mr. Dhillon, he lost title over it then how it would have been revert back to him on strength of consents terms drawn between Mr. Dhillon & Defendant No.1 in said suit filed by defendant No.1 question such sale deed. This was a clearly erroneous approach on the part of the Trial Court, which was one of the factors that weighed with it while granting the injunction in favour of the plaintiffs.
14.2. As far as the declaration of the deceased dated 05.12.2005 is concern, whereby he gave up his right in favor of defendant No.1, thereby declared him as the sole owner of the Schedule-A property, and accordingly a revenue entry in Page 18 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined the record of rights was mutated on 06.12.2005 vide Entry No. 19874 is concerned, neither the plaintiffs nor the deceased in his lifetime have questioned such written declaration duly notarized before any civil court, including in present suit. This fact requires to be proved by the plaintiffs by seeking the necessary declaration, which was not sought for in the suit. 14.3. It is true that such entry was challenged before a higher revenue authority, but it is reported to this Court that all such attempts made at the instance of the deceased and / or the plaintiffs have remained unsuccessful, and as on date, such entry stands as it is.
15. Again, the Trial Court has fallaciously observed in its impugned order that such a revenue entry is only for a fiscal purpose, which does not confer any title in favor of defendant No.1.
15.1. I say so because such entry was not mutated in the 7/12 abstract of revenue record, which would be maintained for a fiscal purpose, but it was mutated in the record of rights i.e. Form No.6 maintained by the Revenue Authority as per Page 19 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined provisions of Gujarat Land Revenue Code, which would prima facie shows the right, title and interest of a person in the land. When such entry was mutated in favor of defendant No.1 in the year 2005 itself, which was never disturbed by any revenue authorities so far, and on the basis of that he executed a gift deed in favor of his wife, i.e., defendant No.2, in the year 2013, whose name was also mutated in the record of rights, i.e., Form No.6, wherein also the plaintiffs were unsuccessful in disturbing such entry though challenged it before higher revenue authorities, the plaintiffs could not have objected and challenged such entry in the present suit proceedings.
16. The Appellants - defendants Nos.9 to 14, having purchased the suit property from defendant No.2, who appears to have title over the Schedule-A property, could not have been injuncted by the Trial Court as prayed for in para 13(A) of the impugned injunction application.
17. The plaintiffs are yet to establish their right flowing from the Will executed by the deceased; until then, they cannot Page 20 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined prohibit the defendants from using the property as they like.
18. The arguments so canvassed by the plaintiffs, that despite the registration of lis pendens under Section 52 of the Transfer of Property Act, they cannot be allowed to make a grievance when an injunction is granted by the Trial Court. As such, when the plaintiffs have already registered lis pendens in light of the aforesaid facts and circumstances, all transactions that would be undertaken by original owners with the Appellants - defendant Nos.9 to 14, would always be governed by Section 52 of the Transfer of Property Act, and the same would not be counterproductive for the Appellants - defendant Nos.9 to 14, and no objections could have been taken by the plaintiffs on that count.
19. Merely because a lis pendens has been registered by the plaintiffs, it would not entitled them to secure an injunction, and the observation of the Trial Court to the effect that because Appellants - defendant Nos.9 to 14 purchased the Schedule-A property during the pendency of the suit, an injunction as prayed for can be granted in favor of the Page 21 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined plaintiffs, is incorrect, erroneous and perverse approach while granting injunction.
20. Furthermore, the plaintiffs, having prayed for the relief of probate on the strength of the Will, have yet to be granted this in their favor till then, no relief could have been granted by Trial Court in their favour. True, it is that probate is not required so far as the State of Gujarat is concerned; however, once the plaintiffs have sought for such a relief in the suit itself, unless and until they secure such relief in their favor, no right would flow in their favor till such relief is granted to them.
21. It is also required to be noted that the deceased during his lifetime had already executed a registered sale deed in favor of Mr. Dhillon, and there was a consent decree in favor of Mr. Dhillon in his suit, which is referred to hereinabove while narrating the facts. Once, the deceased executed the sale deed in relation to the Schedule-A property in favour of Mr. Dhillon, and Mr. Dhillon later on gave up his right flowing from such execution of the sale deed in favor of defendant Page 22 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined No.1 in the form of consent decree passed by a competent Civil Court in favor of defendant No.1, prima facie, I am of the view that the plaintiffs cannot be allowed to get any benefit of the Schedule-A property on strength of Will, which was alleged to have been bequeathed by the deceased in their favor, as it had already been sold by the deceased during his lifetime.
22. The Trial Court has erroneously observed that the consent decree passed in a suit filed by defendant no. 2 against Mr. Dhillon, the title to the suit properties shown in Schedule-A of the suit would be received back by the deceased, which is a complete error in the reading of the consent terms.
23. At the cost of repetition, when the deceased, in his lifetime, executed a sale deed in favour of Mr. Dhillon, he lost the title to the suit property and by virtue of the consent terms arrived at between Mr. Dhillon and defendant no. 1, whereby Mr. Dhillon admitted the sole ownership of defendant no. 1 as regards the suit property in question, by no stretch of the imagination, the deceased would receive back the title to Page 23 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined the suit property.
24. Lastly, the Trial Court has also not taken into account the fact that the suit was filed in the year 2013 and at that point of time, the plaintiffs had already preferred an injunction application (Exh.5) against the original defendants who were shown in the suit when filed but, for a variety of reasons, the plaintiffs have not secured any injunction i.e., ad-interim or otherwise, till 2019. The impugned application, which came to be allowed against the new defendants, was filed in the year 2019, which was heard and decided in year 2020.
25. The Trial Court was required to take note of the provisions of Order 39 Rule 1/2 of the CPC while granting an injunction after lapse of around six years from the date of institution of the suit, which appears to have not been taken note of by the Trial Court while passing the injunction order.
26. Furthermore, the so-called imminent danger and/or likely loss to the plaintiffs at the time of institution of the suit were not addressed immediately by not adjudicating their injunction application at the relevant point in time in the year 2013 or Page 24 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined nearby. By the passage of time, such so-called imminent danger and or loss to the plaintiffs would get watered down.
27. The purpose of granting an injunction in favour of the plaintiffs would be to secure their interest when three conditions are satisfied by them, i.e., prima facie case, the balance of convenience, and irreparable loss. When, in the absence of any injunction granted in their favour by the Trial Court between the period of 2013 to 2019, and in such scenario, the defendants, who were the original owners of the suit property sold it to the third party, who are the Appellants
- defendant Nos.9 to 14, there was no reason for the Trial Court to grant an injunction against them, thereby, not permitting them to use the property that was purchased during the pendency of the suit.
28. According to my view, when the initial injunction application filed below Exhibit 5 by the plaintiffs against the original defendants was not proceeded with by them for any reason whatsoever, and then later, after about six years from its filing, even assuming for the time being that the plaintiffs Page 25 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined might have made out a prima facie case which is none as aforesaid, surely the balance of convenience and irreparable loss would not remain in their favour, as the suit property shown in the Schedule-A was already sold to third party and in that circumstances, the Trial Court could not have granted an injunction, as all three conditions for granting an injunction in favour of the plaintiffs were not satisfied in the case on hand.
29. All these aforesaid factors were completely lost sight of by the Trial Court, which ultimately resulted in erroneous, perverse, arbitrary reasoning which are contrary to law passed by the part of the Trial Court, resulted into passing of an absolute injunction in favour of the plaintiffs prohibiting the use of the Schedule-A property by Appellants - defendants Nos.9 to 14.
30. Before parting with this order, I would like to make it clear that the observations made hereinabove while deciding this appeal will not come in the way of any of the parties to the suit. The Trial Court is required to decide the lis between Page 26 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined the parties as per the evidence coming forth on the record of the suit, and all issues framed in the suit shall have to be decided on their own merits as per the evidence on record, without being influenced by any of the observations made by the Trial Court in its impugned order or by this Court in this order.
31. CONCLUSION
32. In light of the aforesaid, the impugned order requires to be interfered with by this Court, exercising its limited jurisdiction under Order XLIII Rule 1 of the CPC, which in fact interfered herewith.
33. As there is a statement made by learned advocate Mr. Puj to the effect that during pendency of the suit, Appellants - defendant Nos.9 to 14 will not sell, transfer, or alienate the Schedule-A suit property in favor of a third party, the impugned order requires to be modified to the following extent:-
33.1. The impugned order is hereby modified to the extent that Appellants - defendant Nos.9 to 14 are directed not to sell, Page 27 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025 NEUTRAL CITATION C/AO/136/2020 CAV JUDGMENT DATED: 07/07/2025 undefined transfer, or alienate the Schedule-A suit properties purchased by them from defendant No.2 till the disposal of the suit. 33.2. Nonetheless, during pendency of the suit, it is open for Appellants - defendant Nos.9 to 14 to use/construct/repair/let out/lease out etc., the Schedule-A suit properties as per their wish.
34. The suit is of the year 2013, and considering the controversy at hand, the Trial Court is requested to expedite the suit, and it may be adjudicated at the earliest, subject to cooperation receive from the parties to the Trial Court.
35. In view of the aforesaid observations, reasons and directions, the present Appeal from Order is hereby partly allowed to the aforesaid extent. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 28 of 28 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:29:56 IST 2025