Gujarat High Court
Sunandaben D/O Jagannath Shalabhai ... vs Bipinchandra Shantilal Shah on 5 May, 2025
NEUTRAL CITATION
C/AO/75/2025 ORDER DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 75 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 75 of 2025
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SUNANDABEN D/O JAGANNATH SHALABHAI PATIL & ORS.
Versus
BIPINCHANDRA SHANTILAL SHAH & ORS.
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1,2,3,3.1,3.2
NAJMUDDIN R MEGHANI(7834) for the Appellant(s) No. 1,2,3,3.1,3.2
THAKKAR AND PAHWA ADVOCATES(1357) for the Respondent(s) No.
1,2.4
VIDIT S SHARMA(7365) for the Respondent(s) No. 2,2.1,2.2,2.3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/05/2025
ORAL ORDER
1. Admit. Learned advocate Ms.Sangita Pahwa for Thakkar and Pahwa waives service of notice of admission on behalf of the respondent Nos.1 and 2. The presence of respondent Nos.3 to 5 is not required as appellant is not seeking any relief, at this stage, against the respondent Nos.3 to 5. With the consent of learned advocates appearing for respective parties, appeal itself is heard finally today.
2. Heard learned advocate Mr.Mehul Sharad Shah for the Page 1 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025 NEUTRAL CITATION C/AO/75/2025 ORDER DATED: 05/05/2025 undefined appellant and Ms.Sangeeta Pahwa for the respondent Nos.1 and 2 - main Contesting respondents on caveat.
3. The Appellants herein are original plaintiffs and respondents herein are original defendants. Herein after, parties will be referred as per their original position in the suit.
4. At the outset, learning advocate Mr. Shah would submit that plaintiffs are daughters and legal heirs of one of daughter of Late Mr. Jagannath Shalabhai Patil, who died on 26.06.2008 but in the revenue record, only the name of sons of their late father were mutated on 31.07.2008 who happens to be their brothers. The respondent Nos.3 to 5 herein are original defendant No.3 to 5 happens to be the brothers of plaintiffs had entered into an agreement to sell with respondent nos.1 and 2 herein who are original defendant No.1 & 2 in relation to their ancestral property which is now a subject matter of suit filed by plaintiffs.
4.1 Learned advocate Mr. Shah would further submit that
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NEUTRAL CITATION
C/AO/75/2025 ORDER DATED: 05/05/2025
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defendant Nos.1 and 2 herein had preferred a Special Civil Suit No.147 of 2012 again defendant Nos.3 to 5 seeking specific performance of said agreement which came to be decreed, thereby, a Court Commissioner was appointed by court concerned, who executed sale deed for entire piece of land which is subject matter of the suit filed by the present appellants against the respondents herein. 4.2 Learned advocate Mr. Shah would submit that as such, rights of daughters are available by birth as per provision S. 6 of Hindu Succession Act, 1956 and law is well settled on this subject, thereby, plaintiffs have made out prima facie case so far as their share in the suit property is concerned which was not only inherited by defendant No. 3 to 5 but plaintiffs as well being Class-I legal heirs of Late Mr. Jagannath Shalabhai Patil.
4.3 Learned advocate Mr. Shah would further submit that some of the observations made by the trial court as regards to the collusion with the defendant nos.3 to 5 by plaintiffs are Page 3 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025 NEUTRAL CITATION C/AO/75/2025 ORDER DATED: 05/05/2025 undefined uncalled for. As such, rights of plaintiffs are independent to the rights of the brothers, who could not have executed sale deed for entire piece of land and merely, because plaintiffs have not questioned the revenue entry so mutated at the instance of defendant Nos.3 to 5 (brothers) would not automatically disentitled plaintiffs to get their share in the property.
4.4 Learned advocate Mr. Shah would further submit that considering the entire set of facts and circumstances of the case, as such, an injunction, so prayed, ought to have been granted.
4.5 Lastly, Learned advocate Mr. Shah would submit that trial court has committed a gross error by imposing a costs of Rs.50,000/- without giving any specific finding about imposition of such heavy costs while rejecting injection application.
5. Per Contra, learned advocate Ms.Pahwa appearing for the Page 4 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025 NEUTRAL CITATION C/AO/75/2025 ORDER DATED: 05/05/2025 undefined respondent Nos.1 and 2 - main contesting respondents would submit that when the plaintiffs have not questioned the entry mutated in the revenue record after the death of their father in the year 2008 and only the name of their brothers were mutated as per pedigree submitted by them before revenue authority whereby, defendant Nos.1 and 2 have entered into an agreement to sell, to purchase the suit land from them, now plaintiff cannot question the sale deeds so executed in favour of defendant Nos.1 and 2 through process of court. She would submit that plaintiffs having not questioned judgement/decree passed by competent civil court by challenging the judgment and decree passed by the competent court in Special Civil Suit No.147 of 2012 against defendant Nos.3 to 5, now they have no right to pray for any injunction against defendant No.1 & 2.
5.1 Learned advocate Ms. Pahwa would further submit that there are cogent and sufficient reasons assigned by the trial court while rejecting injunction application which may not Page 5 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025 NEUTRAL CITATION C/AO/75/2025 ORDER DATED: 05/05/2025 undefined be disturbed by this court while exercising its appellate power under Order XLIII Rule 1 of Civil Procedure Code, 1908 (hereinafter referred to as "CPC").
5.2 Learned advocate Ms. Pahwa would further submit that plaintiffs have definitely colluded with defendant Nos.3 to 5, as a new pedigree executed by the defendant Nos.3 to 5 in year 2024 indicating the name of plaintiffs would show that just to overreach the effect of decree and not allow defendant No.1 & 2 to realize fruits of the said decree, filed suit belatedly and in such factual situation, no injunction can be granted in favour of plaintiffs who can be compensated in terms of money if ultimately succeeds in suit as entire sale consideration has been already deposited by defendant No.1 & 2 in civil court in relation to suit land.
5.3 Learned advocate Ms. Pahwa would further submit that judgment and decree in suit filed against defendant Nos.3 to 5 were passed in the year 2017 and the execution was filed in the year, 2023 and then after in August 2024, the present Page 6 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025 NEUTRAL CITATION C/AO/75/2025 ORDER DATED: 05/05/2025 undefined suit is filed, which is definitely filed with collusion with brothers of plaintiffs just to frustrate said decree.
6. When this Court after taking note of the aforesaid submissions made by the respective parties, about to record its reasons, at this stage, learned advocate Mr. Shah, under the instruction of his clients, does not invite reasons as regards the merits of the matter except cost imposed upon them. Nonetheless, Learned advocate Mr. Shah would request that so far as the right of daughters of late Jagannath Shalabhai Patil i.e., plaintiffs are concerned, this Court may protect their interest, at least, by directing the defendant Nos.1 and 2 to inform the trial Court, whenever they intended to sell/alienate/transfer/mortgage etc half of the suit land is concerned. As at least, considering share of plaintiffs in suit land, they are entitled to receive half portion of suit land if not full.
7. Apropos to such request, learned advocate Ms. Pahwa, under the instruction of her clients would agree to such Page 7 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025 NEUTRAL CITATION C/AO/75/2025 ORDER DATED: 05/05/2025 undefined request made by learned advocate Mr. Shah that whenever defendant Nos.1 and 2 intends to sell/alienate/transfer/mortgage etc. half portion of suit land to any third party, they would declare such sale or transfer to the trial court before having effecting any registration of sale deed in favour of third parties.
8. So far as question of costs is concerned, learned advocate Ms. Pahwa has left to the discussion of this court to decide the issue of the costs.
9. As far as imposition of Rs.50,000/- costs is concerned, I am not able to get any reasons assigned by the trial court to impose such exemplary costs upon the plaintiffs and in absence of any such reasons and even after going through the order impugned in appeal, nothing found, thereby, it can be said that plaintiffs have either suppressed any material fact /committed any fraud or misled the court while submitting injunction application.
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10. So, in such a situation and in the absence of any reason so assigned by the Trial Court, I would like to interfere with the order impugned to the extent of only costs part so imposed by Trial Court while rejecting injunction application having not justifiable in the facts and circumstances of the case as well as no cogent & convincing reasons so assigned by Trial Court for imposition of such exemplary cost.
11. In view of aforesaid, I would like to pass following order:-
11.1 In view of said request made by learned advocate of respective parties, the defendant Nos. 1 and 2 are hereby directed to first disclose to trial Court during pending suit proceeding whenever they intended to sell/alienate/transfer/mortgage etc half of the suit land is concerned in favor of any third party and so also disclosing the particulars of third parties and nature of transaction intending to enter into.
11.2 It is always open for the plaintiffs to register a lis pendens with the concerned registrar in relation to the subject Page 9 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025 NEUTRAL CITATION C/AO/75/2025 ORDER DATED: 05/05/2025 undefined matter of the suit if so far not registered. 11.3 The order of imposition of Rs.50,000/- costs by the trial court is hereby quashed and set aside. The rest of the order passed by the trial court impugned in the present appeal is not disturbed.
11.4 It is further made clear that trial Court is required to decide the lis between the parties as per the evidence coming forth during course of trial in the suit by giving an opportunity of hearing to all parties concerned and to adjudicate the suit in accordance with law without being influenced by any of its observations so made in the order impugned in the present appeal as well as any observations so made by this Court in the present order.
11.5 It is open for both the sides to request the trial court for expediting the suit proceedings. In a case, where such a request will be made by either of the parties and they are undertake to the trial court to extend their cooperation and Page 10 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025 NEUTRAL CITATION C/AO/75/2025 ORDER DATED: 05/05/2025 undefined support to complete the trial, such requests may be considered by the trial court sympathetically.
12. In view of the aforesaid observation and discussion, the present appeal is hereby partly allowed to the aforesaid extent.
No order as to costs. As a sequel, Civil application is also disposed of.
(MAULIK J.SHELAT,J) MOHD MONIS Page 11 of 11 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Fri May 09 00:59:11 IST 2025