Gujarat High Court
Legal Heirs Of Deceased Thakorbhai ... vs Rameshbhai Dhansukhbhai Mali on 1 May, 2026
NEUTRAL CITATION
C/AO/230/2025 JUDGMENT DATED: 01/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 230 of 2025
With
CIVIL APPLICATION (FOR INJUNCTION) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 230 of 2025
With
R/APPEAL FROM ORDER NO. 2 of 2026
With
R/APPEAL FROM ORDER NO. 4 of 2026
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 4 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
==========================================================
Approved for Reporting Yes No ========================================================== LEGAL HEIRS OF DECEASED THAKORBHAI MANCHHABHAI PATEL & ORS.
Versus RAMESHBHAI DHANSUKHBHAI MALI & ORS.
========================================================== Appearance:
MR. AADIT R SANJANWALA(9918) for the Appellant(s) No. 1,1.1,1.2,1.3,2 JENIL M SHAH(7840) for the Respondent(s) No. 19,20,21 ========================================================== CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 01/05/2026 COMMON JUDGMENT
1. The present Appeals from Orders are filed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter, referred to as "the Code") by the appellants - original plaintiffs challenging the order dated 25.09.2025 passed by the learned Trial Court rejecting applications below Exhibits - 5, 53 and 54. Page 1 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026
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2. Heard learned Senior Advocate Mr. Mihir Shah assisted by learned advocate Mr. Aadit Sanjanwala for the appellants and learned Senior Advocate Mr. Mehul Shah assisted by learned advocate Mr. Jenil Shah appearing on caveat for respondent Nos. 19 to 21.
3. The brief facts of the case are as under:
3.1 The appellants - plaintiffs have filed a suit inter alia seeking specific performance of the agreement to sell dated 11.10.1985 and permanent injunction with respect to land bearing Survey No. 54/1, admeasuring 5,867 sq. mtrs.
Mouje - Anjana, Taluka - Udhna, District - Surat, which is allotted final plot No. 94 admeasuring about 4,410 sq. mtrs. in Town Planning Scheme No. 7 (Anjana). The plaintiffs, under the said agreement to sell, were put into possession. The suit land being Survey No. 54/1, was originally owned by Naginbhai Punjiyabhai Mali, Kantibhai Naginbhai Mali, Dhansukbhai Punjiyabhai Mali, Mahesh Dhansukhbhai Mali, Ramesh Dhansukhbhai Mali and Rajubhai Dhansukhbhai Mali. Original owners decided to sell the suit land to defendant No. 16, Vasantlal Thakordas Mali by executing an Page 2 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined agreement to sell dated 10.08.1985, possession of the suit land was handed over to defendant No. 6 after accepting full amount of consideration. Thereafter, Thakorbhai Manchhabhai Patel decided to purchase the suit land from Vasantlal Thakordas Mali at a sale consideration of Rs.1,76,400/- and agreement to sell dated 11.10.1985, was executed by Dhansukbhai Punjiyabhai Mali, Naginbhai Punjiyabhai Mali was executed in favour of Thakorbhai Manchhabhai Patel. Defendant No. 16 was shown as a confirming party to the said agreement to sell. Original land owners handed over peaceful and vacant possession of the suit land to Thakorbhai Manchhabhai Patel. In the year 1994, Thakorbhai Manchhabhai Patel received brain stroke and remained in coma till his death on 27.04.2002. Plaintiff No. 1(a) to 1(c) are legals heirs of deceased Thakorbhai Manchhabhai Patel. Plaintiff No. 1(a) to 1(c) agreed to sell the suit land to plaintiff No. 2 by executing an agreement to sell. Defendant Nos. 1 to 15, who are the legal heirs of original owners, were requested to execute a registered sale deed in a suit bearing Regular Civil Suit No. 447 of 1995 instituted by one Ashok Kumar Laxmandas Patel with Page 3 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined regard to Survey Nos. 54/2 and 54/3 of Moujhe - Anjana. Present plaintiffs were implied as legal heirs of Thakorbhai Manchhabhai Patel as defendant No. 8. In the month of September 2013, upon service of summons of the aforesaid suit, the plaintiffs on noticing the fact that defendant Nos. 1 to 15 have executed an agreement to sell in favour of defendant No. 18, Nareshbhai Gordhanbhai Sarasiya and a power of attorney was executed by defendant Nos. 1 to 15 in favour of defendant No. 17, Karanbhai Samantbhai Sarasiya. It is the case of appellants that pending suit, defendant Nos. 1, 3 to 11 executed a registered sale deed dated 30.11.2015, in favour of Laljibhai Dungarbhai Dalia, Maganbhai Mohanbhai Lakhankiya and Nareshbhai Haribhai Babaria. On 21.12.2015, plaintiffs were dispossessed by defendants by breaking the barbed wire fencing and by constructing a boundary wall. Plaintiff, therefore, filed application Exhibit - 54 seeking an interim mandatory injunction to restore their possession and also filed an application, Exhibit - 53 for a relief of temporary injunction restraining defendant Nos. 19 to 21 from disturbing plaintiffs' possession and/or selling the suit land.
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The learned Trial Court vide order dated 25.09.2025, rejected all the three applications i.e. Exhibits - 5, 5 3 and 54. 3.2 Being aggrieved and dissatisfied with the rejection of the applications, the appellants - plaintiffs have preferred the present Appeals from Orders.
4. Learned Senior Advocate for the appellants - plaintiffs submitted that on 10.08.1985, an agreement to sell was executed for Survey No. 54/1 in favour of Vasantlal Thakordas Mali (defendant No. 16). Thereafter, the agreement to sell dated 11.10.1985, was executed only by the then owners of Survey No. 54/1, namely, Dhansukbhai Punjiyabhai Mali and Naginbhai Punjiyabhai Mali for sale of the suit land in favour of Thakorbhai Manchhabhai Patel. It is submitted that Vasantlal Thakordas Mali signed the said agreement as a consenting party. Clause-2 records payment of consideration through cheque. The agreement to sell was coupled with handover of possession and the entire consideration was paid at the time of execution of the agreement to sell. Similar Agreements to sell were also executed for Survey Nos. 54/2 and 54/3. Thakorbhai Manchhabhai Patel suffered a brain haemorrhage and went into coma in the year 1993.
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Thakorbhai Manchhabhai Patel eventually died on 27.04.2002. His daughter Hetalben also suffered from Dermatomyositis and died on 25.04.2008. It is submitted that the heirs of Thakorbhai Manchhabhai Patel received summons dated 13.08.2013 for the purpose of being brought on record of Regular Civil Suit No. 447 of 1995 as heirs of Thakorbhai Manchhabhai Patel. The said suit of 1995 was only in relation to Survey Nos. 54/2 and 54/3. The suit appears to be instituted by persons claiming to be plot-holders in Survey Nos. 54/2 and 54/3 to restrain the owners, defendant Nos. 1 to 7 therein, and defendant No. 8 - Thakorbhai Manchhabhai Patel, from disturbing possession of the plot holders. Thakorbhai Manchhabhai Patel did not appear in the suit proceedings, owing to his medical condition. Exhibit - 5 Application was disposed of vide order dated 20.10.2005 and the interim relief granted on 15.04.1995 was continued till final disposal of the suit. The findings of issue Nos. 1 to 3 records that defendant No. 8, Thakorbhai Manchhabhai Patel had passed away and nobody had appeared on his side. The Exhibit - 5 order was challenged by filing Civil Misc. Appeal No. 104 of 2005 before the learned District Court and was dismissed vide order dated 08.11.2012. The order dated 08.11.2012 was further challenged before the Co-ordinate Page 6 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined Bench of this Court in Special Civil Application No. 35 of 2013. The Co-ordinate Bench of this Court dismissed the petition vide order dated 11.02.2013 without going into the merits, confirming the injunction and directing the learned Trial Court to decide the suit within one year. Temporary injunction was ordered which operated from 1995 till withdrawal of the suit on 21.12.2014. It is submitted that in the local investigation, it was found that the gate for Survey No. 54/1 was opened through keys provided by the plaintiffs and that there were notice boards erected on site, declaring that 4/1 was in occupation and possession of plaintiffs. Photographs produced below Exhibit - 114, the possession of the plaintiffs' on the date of institution of the suit is clearly seen. During the pendency of the suit, the plaintiffs registered lis pendens on 14.07.2015. Pending the suit, defendant Nos. 19 to 21 got a sale deed dated 30.11.2015 executed in their favour. The sale deed records that Special Civil Suit No. 519 of 2014 was pending in respect of the suit land. Defendant Nos. 19 to 21, have therefore, purchased the suit land with open eyes and full knowledge of the plaintiffs' pending claim for specific performance. Thereafter, on 14.12.2015, the plaintiffs filed application below Exhibit - 53 to restrain the purchasers from disturbing the Page 7 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined plaintiffs' possession or creating third party rights. Between 18.12.2015 and 21.12.2015 attempts were made to forcibly take possession of the suit land from the plaintiffs. Eventually, possession was forcibly snatched with the aid of police authorities. The plaintiffs made several attempts / representations / complaints / applications to the police authorities desperately seeking their intervention and protection. The plaintiffs filed application below Exhibit - 54 on 29.12.2015 for an interim mandatory injunction to restore the plaintiffs possession of Survey No. 54/1. The prayer for temporary injunction could not have been rejected on the ground of plaintiffs not being in possession. The Plaintiffs were forcibly dispossessed. Appellants have paid full consideration and possession was handover at the time of execution of ATS. When the agreement for sale is coupled with possession and consideration was entirely paid, the appellants have significant right, title and interest in the land. The sale deed, having remained unexecuted, has no bearing or significance and does not affect the appellant's long standing rights in the land. It is submitted that the learned Trial Court did not appreciate that the purchase was made with full knowledge of pending litigation. The appellants are prior agreement to sell holders. The purchasers have snatched Page 8 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined possession by dubious means. The defendants have taken law in their own hands and have acted in brazen disregard of judicial process. Balance of convenience overwhelmingly weighs in favour of the appellants as construction is being put up. The learned Trial Court did not consider that construction in Survey No. 54/1 has reached only till plinth stage. The construction was required to be stopped and current status of the land may be preserved, failing which defendant Nos. 19 to 21 will complete construction, change the entire nature of the property and then claim equities. Time has not been made the essence of the agreement to sell. Therefore, as per Article 54, cause of action would accrue when the plaintiffs have noticed that performance is refused. Even otherwise, performance was impossible earlier. The execution of sale deed was to be done after obtaining Section 43 permission as per Clause-3. The litigation regarding applicability of Section 43 attained finality only on 16.09.2015, when the restrictions of Section 43 were declared inapplicable. Before that it would not have been possible to execute the sale deed. The orders passed for Survey Nos. 54/2 and 54/3 have a significant bearing for Survey No. 54/1 as well. Based on the said orders, the agreement to sell for Survey No. 54/1 also stands proved prima facie.
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5. Learned Senior Advocate for the appellants has relied upon the following decisions:
In the case of Maharwal Khewaji Trust (Regd.,) Farikot Vs. Baldev Das reported in (2004) 8 SCC 488, it was held by the Hon'ble Apex Court that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings.
In the case of Ibrahim Shah Mohammad and others Vs. Noor Ahmed Noor Mohammad and others reported in AIR 1984 Guj 126, the Hon'ble Division Bench of this Court held that the Court should always lean towards seeing that there is no multiplicity of proceedings and also that the proceedings should go on as far as possible, so smooth that a decision can be arrived at between the parties who are on record as early as possible.
In the case of Dev Prakash and another Vs. Indra and others reported in (2018) 14 SCC 292, the Hon'ble Apex Court held that the very essence of the concept of temporary injunction Page 10 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted illusory.
In the case of N. Srinivasa Vs. Kuttukaran Machine Tools Limited reported in (2009) 5 SCC 182, if an order restraining the respondent from creating third-party interest or from transferring the property in dispute is not granted till an award is passed, the appellant shall suffer irreparable loss and injury and the entire award, if passed in his favor, would become totally negated and it would be difficult for the appellant to ask the respondent to execute the sale deed when a third-party interest has already been created by sale of the property in dispute and when possession delivered to the third party. The High Court observed that the order shall not be understood to have limited the power of the arbitrator to consider the dispute on all the respects, including grant of specific performance of the contract, but by vacating the interim relief to the appellant, the High Court has rightly and entire arbitration Page 11 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined proceedings infructuous.
Except above, no other submissions were made by learned Senior Advocate for the appellants - plaintiffs.
6. Per contra, learned Senior Advocate for respondent Nos. 19 to 21 contended that plaintiffs were never in possession of the suit property. The only evidence produced by the plaintiffs to establish alleged possession is the alleged agreement to sell of the year 1985. Even in the Regular Civil Suit No. 447 of 1995 (for survey Nos. 54/2 and 54/3 only), it is the say of the original owners i.e. respondent Nos. 1 to 15 herein, that plaintiff was never in possession and further disputed the alleged agreement to sell. Against this evidence, the respondents produced a report of circle of officer dated 02.05.2015 which categorically states that plaintiffs are not in possession and original owners are in possession. Payment of land revenue by original owners shows name of the original owners and does not reflect the name of the plaintiffs anywhere. The registered sale deed dated 30.11.2015 in favour of the respondent Nos. 19 to 21 categorically mentions transfer of possession from original owners to the purchasers and the police complaints preferred by the plaintiffs were not entertained by the Page 12 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined police and the complaints were closed since no offence was made out. The Court Commissioner's report was prepared ex-parte and in absence of original owners.
7. It is further submitted that defendants have purchased the land by paying huge consideration of Rs.5,84,32,800/- by virtue of execution of registered sale deed. The land was converted into non-agricultural land after payment of huge premium vide order dated 17.07.2017. The development permission was obtained. The present case is of infrastructure project wherein two towers have been built and third tower is under construction for purpose of shopping complex. It is contended that once the plaintiff quantifies damages in the plaint, then there is no question of any irreparable injury causing to the plaintiff as per settled position of law. No evidence is produced on record to show that the plaintiffs have paid the entire consideration of Rs.1,76,000/- to two of the original owners out of 6 co-owners under the alleged agreement to sell. It is further contended that an unregistered and unnotarized agreement to sell dated 11.10.1985 with possession is not admissible in evidence. The agreement to sell is required to be compulsorily registered if the same is with possession as per Article 20, Explanation 1 of the Stamp Act otherwise, such Page 13 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined document is not admissible in evidence under Section 33 and 34 of the Act. Hence, the present agreement to sell cannot be looked at in the evidence as per settled position of law. Admittedly, the first agreement to sell dated 10.08.1985 was executed by 6 joint co-owners of land in question in favour of Vasantlal Thakordas Mali. However, the present agreement to sell is executed by just two co-owners wherein, Vasantlal Thakordas Mali has signed a confirming party. Therefore, specific performance of such an agreement is not enforceable as per settled position of law. Despite objections of the plaintiffs, all the orders in revenue entry proceedings and N.A. proceedings are passed in favour of the present respondents. It is contended that the view taken by the Lower Court is not ex-facie perverse or suffering from patent illegality. Therefore, the plaintiffs do not have any prima facie case and balance of convenience is also in favour of the respondents. Further, no irreparable injury would be caused to the plaintiffs and hence, the present Appeals from Orders is required to be dismissed.
8. Learned Senior Advocate for respondent Nos. 19 to 21 has relied upon the following decisions:
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1. Decd Shaikh Ismailbhai Hushainbhai Through Lh Vs. Vankar Ambalal Dhanabhai reported in 2024 (1) GLH 222
2. Ece Industries Limited Vs. S.P.Real Estate Developers Private Limited reported in 2009 (12) SCC 776
3. Best Sellers Retail (India) Pvt. Ltd. Vs. Aditya Birla Nuvo Limited reported in 2012 (6) SCC 792 Except above, no other submissions were made by learned Senior Advocate for respondent Nos. 19 to 21.
9. Having considered the submissions canvassed by learned Senior Advocates for the respective parties and upon perusal of the papers placed on record, it appears that the appellants - plaintiffs filed a suit seeking specific performance of the agreement to sell dated 11.10.1985 and permanent injunction with respect to land bearing Survey No. 54/1, admeasuring 5,867 sq. mtr. of Mouje - Anjana, Taluk - Udhna, District - Surat, which is allotted final plot No. 94 admeasuring about 4,410 sq. mtr. in Town Planning Scheme No. 7. The plaintiffs, under the aforesaid agreement to sell, were put into possession. The suit land being Survey No. 54/1, was originally owned by Naginbhai Punjiyabhai Mali, Kantibhai Naginbhai Mali, Dhansukhbhai Punjiyabhai Mali, Page 15 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined Mahesh Dhansukhbhai Mali, Ramesh Dhansukhbhai Mali and Rajubhai Dhansukhbhai Mali, the original owner, decided to sell the suit land to defendant No. 16, Vasantlal Thakordas Mali by executing an agreement to sell dated 10.08.1985. Possession of the suit land was handed over to defendant No. 16 after accepting full amount of consideration. Thereafter, Thakorbhai Manchhabhai Patel decided to purchase the suit land from Vasantlal Thakordas Mali at sale consideration of Rs.1,76,400/- and agreement to sell dated 11.10.1985, Dhansukhbhai Punjiyabhai Mali, Naginbhai Punjiyabhai Mali was executed in favour of Thakorbhai Manchhabhai Patel. Defendant No. 16 was shown as a confirming party to the said agreement to sell. Original land owners handed over peaceful and vacant possession of the suit land to Thakorbhai Manchhabhai Patel. In the year 1994, Thakorbhai Manchhabhai Patel suffered brain stroke and remained in coma till his death on 27.04.2002. Plaintiff No. 1(a) to plaintiff No. 1(c) are the legal heirs of deceased Thakorbhai Manchhabhai Patel. Plaintiff No. 1(a) to plaintiff No. 1(c) agreed to sell the suit land to plaintiff No. 2 by executing an agreement to sell. Defendant Nos. 1 to 15, who are the legal heirs of original owners were requested to execute a registered sale deed in a suit bearing Regular Civil Suit No. 447 of Page 16 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined 1995 instituted by one Ashok Kumar Laxmandas Patel with regard to Survey No. 54/2 and 54/3 of Moujhe - Anjana. Plaintiffs, were implied as legal heirs of Thakorbhai Manchhabhai Patel as defendant No. 8. In the month of September, 2013, service of summons of the aforesaid came to be issued to plaintiffs. The plaintiffs noticed the fact that defendant Nos. 1 to 15 have executed an agreement to sell in favour of defendant No. 18, Nareshbhai Gordhanbhai Sarasiya and a power of attorney executed by defendant Nos. 1 to 15 in favour of defendant No. 17, Karanbhai Samantbhai Sarasiya and pending suit, defendant No. 1, 3 to 11 have executed a registered sale deed dated 30.11.2015, in favour of defendant Nos. 19 to 21. It is alleged by plaintiffs that on 21.12.2015 defendants dispossessed plaintiffs by breaking the barbed wire fencing and constructed a boundary wall. Plaintiffs amended the plaint by inserting prayer for cancellation of sale deed dated 30.11.2015 and for restoration of possession. Plaintiffs have also moved applications below Exhibits - 54 and 55, praying for a relief of injunction restraining defendant Nos. 19 to 21 to deal with the suit land in any manner and a relief of restoration of possession.
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10. Defendant Nos. 19 to 21, who are transferees pending suit, purchased the suit land from original owners by paying a huge amount of consideration of Rs.5,84,32,800/- and the original owners handed over actual possession of suit land to the defendants. Defendants have also purchased land bearing Revenue Survey No. 54/2 and Revenue Survey No. 54/3 from original owners, and after execution of three sales deeds, defendants had applied before the Collector, Surat for carrying out activities of non-agriculture on 17.07.2017, on Survey No. 53/1. Collector, Surat granted such permission. In the year 2017, plans for construction have been sanctioned by Surat Municipal Corporation and defendant Nos. 19 to 21 have been granted permission to construct over the suit land. Defendants - original owners have denied execution of agreement to sell dated 10.08.1985 in favour of defendant No. 16 and have also denied the execution of an agreement to sell dated 11.10.1985 executed in favour of Thakorbhai Manchhabhai Patel. It is the contention of defendants that the alleged agreement to sell dated 10.08.1985 is signed only by four co-owners out of total six co-owners. Whereas the agreement to sell dated 11.10.1985 also does not bear the signatures of all the co-owners but it is signed by only two of the Page 18 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined co-owners out of the total six co-owners. The plaintiffs have also not produced agreement to sell alleged to have been executed in favour of plaintiff No. 2 by plaintiff Nos. 1(a) to 1(c). Regular Civil Suit No. 447 of 1995 was not pertaining to the suit land, but it pertained to land bearing Survey No. 54/2 and 54/3 of Moujhe - Anjana. It also appears that Thakorbhai Manchhabhai Patel, during his lifetime has not sought for any relief of specific performance against the original owners and after about 12 years of passing away of Thakorbhai Manchhabhai Patel, heirs of deceased Thakorbhai Manchhabhai Patel have filed the present suit. Defendants have also asserted their possession over the suit land pursuant to a registered sale deed dated 30.11.2015. It is also denied by defendants that they have dispossessed plaintiffs from the suit land.
11. It is the submission of learned Senior Advocate for the plaintiffs that the consideration amount was paid to erstwhile owners by Thakorbhai Manchhabhai Patel by cheques and the bank entries have been produced in support of the contention that the amount of consideration has been paid. Proceedings under section 63 of the Tenancy Act was also going on. The learned Page 19 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined Court below after appreciating the material placed on a record, prima facie found that plaintiffs were not in possession of the suit land and on the ground that the suit for specific performance filed belatedly, as an agreement to sell, does not create any right in the land as compared to a right, title, and interest created through a registered sale deed executed in favour of defendant Nos. 19 to 21, rejected Injunction Application and an application for restoration of possession.
12. The question involved in the present Appeals from Orders is whether, from the material available on record, plaintiffs have established their possession on the suit land pursuant to an agreement to sell dated 11.10.1985. To substantiate possession, much reliance has been placed upon the agreement to sell dated 10.08.1985 executed by erstwhile owners in favour of defendant No. 16 and, thereafter, an agreement to sell dated 11.10.1985, executed by owners in favour of Thakorbhai Manchhabhai Patel. Plaintiffs have also relied upon a report of Court Commissioner to establish that plaintiffs are in possession of the suit land. On perusal of the said agreement to sell, it stipulates almost identical conditions as stipulated in agreement to sell dated 11.10.1985.
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Both the agreements to sell do not stipulate any condition in favour of either defendant No. 16 or in favour of Thakorbhai Manchhabhai Patel to get the execution of registered sale deed on a future date. No right has been given by co-onwers in favour of defendant No. 16 or in favour of Thakorbhai Manchhabhai Patel to have a right to seek specific performance of respective agreements to sell.
13. It is noted that Regular Civil Suit No. 447 of 1995 came to be instituted by Ashok Kumar Laxman Das Patel and others against the original land owners as well as against Thakorbhai Manchhabhai Patel for a relief of declaration and permanent injunction with regard to land bearing Survey No. 54/2 and 54/3 for which the present plaintiffs have also filed separate suits along with the present suit. It is alleged by Ashok Kumar Laxman Das Patel and others in the suit that Thakorbhai Manchhabhai Patel is a builder and land organizer who is having possession. And Thakorbhai Manchhabhai Patel has allotted plots to plaintiffs and has also handed over possession to respective plaintiffs for development. The learned Court, while granting ad interim injunction, on 15.04.1995, in Regular Civil Suit No. 447 of 1995 found that Ashok Kumar Lakshman Das Patel and others are in Page 21 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined possession and defendant - original owners as well as Thakorbhai Manchhabhai Patel were directed not to dispossess plaintiffs without due process of law and from entering into the suit property. By an order dated 20.10.2005, below Exhibit - 5 in Regular Civil Suit No. 447 of 1995, the Court has observed that Thakorbhai Manchhabhai Patel has handed over possession of suit lands to plaintiffs by accepting consideration. The said order was confirmed by an order dated 15.04.1995. The order of injunction came to be confirmed by the High Court. The record indicates that on 21.12.2014, Regular Civil Suit No. 447 of 1995 came to be withdrawn in Lok Adalat. In the opinion of this Court, the admission of plaintiffs that Thakorbhai Manchhabhai Patel is in possession will not help present appellants - plaintiffs in establishing possession of Survey No. 54/1 so much so that they said suit was pertaining to Survey No. 54/2 and Survey No. 54/3. Reliance has been placed by learned Senior advocate on the report of court Commissioner, which indicates that on the date of the suit, plaintiffs were in possession as a board is also found on the suit land. Such reliance on commissioner's report in the case where the suit property is an open land is not prima facie evidence. A report of a Court Commissioner cannot be used as an evidence to Page 22 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined establish possession of a party. The plaintiffs must establish settled possession by showing independent evidence. Undisputedly, plaintiffs have not been able to establish that they were in possession on the date of the suit. More particularly, original landowners have denied possession of defendant No. 16 and possession of Thakorbhai Manchhabhai Patel. Defendant Nos. 19 to 21 being holder of a registered saledeed, though pending suit, of an open land is required to be believed to be in possession of the suit land as the settled proposition of law is that possession of an open land is presumed to have been with a person who is holding registered sale deed. Moreover, the Mamlatdar, Surat city, Udhana in its report, dated 02.05.2015 has stated that Survey No. 54/1 is an open piece of land and the land is in possession of land owners. The original land owners have also stated in the enquiry that owners have not sold the disputed land to any anyone else and they are in possession of the land in question. Restoration of possession in such set of facts cannot be entertained. A separate prayer in the plaint for restoration of possession is also prayed for by plaintiffs and therefore, if at an interim stage, mandatory relief of restoration of possession is granted, it would amount to a passing a decree without Trial. The Page 23 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined Court has power to restore possession to a party who has been dispossessed pending suit. A party who has been dispossessed by other party or by a third party, must establish prima facie that he was in settled possession on the date of the suit. In the present case, unless and until parties are put to the stage of evidence, on the basis of pleadings and affidavits, possession of plaintiffs cannot be believed. Another question which shall be adjudicated whether the plaintiffs are entitled to specific performance of an agreement to sell, when agreement does not prescribe any stipulation to seek a relief of specific performance upon breach of any terms and conditions of agreement to sell.
14. Prima facie case is not sufficient for the purpose of granting interim relief at the interlocutory stage. The Court must also consider the balance of convenience and irreparable loss by granting or refusing injunction. Balance of convenience must also be in favour of the party claiming such interim relief and if the interim relief is denied at such stage, an irreparable loss or injury would be caused to the party claiming such interim relief. In the present case, even if it is assumed that the appellants - original plaintiffs have a strong prima facie case in their favour and Page 24 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined plaintiffs are likely to succeed ultimately in the suit, as far as balance of convenience and irreparable, loss or injury are concerned, the land in question being ordered to have been converted into an old tenure land upon the application of defendant Nos. 19 to 21 and a development permission being granted by Surat Municipal Corporation in favour of defendant Nos. 19 to 21, are bound to be rejected. Thus, considering the overall view of the matter and considering the fact that rival contentions of the parties are yet to be processed and examined at the time of Trial, it is not just and proper to grant any relief as prayed for in application Exhibits - 5, 53 and 54, respectively in favour of plaintiffs.
15. The decisions relied upon by learned Senior Advocate for the appellants are not helpful to the appellants as the law laid down in the said decisions are not germane to the controversy found in the present Appeals from Orders.
16. In the case of Ece Industries Limited (Supra), The Hon'ble Apex Court held that it is well settled that when construction has been made on land which is of considerable magnitude and when the plaintiff shall not face any substantial injury, if no order of injunction is granted because of payment or deposit of entire Page 25 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined amount payable by defendant to plaintiff under the agreement, though belatedly, we are of the view that the court will not, as a matter of course, pass an order of injunction against the other party restraining the other party from making any construction on the suit property till the disposal of the suit.
If ultimately the suit filed by the plaintiff-appellant is decreed, he can be compensated in terms of damages or the defendants - respondents may be directed to pull down the construction and deliver vacant possession to the plaintiff-appellant and no equity can be claimed for such construction by the defendant-respondent.
On the other hand, in our view, if at this stage an order of injunction is granted against the defendants-respondents from proceeding with further construction in the suit property, it would undoubtedly destroy the constructions already made by the defendant-respondents and the defendant-respondents will suffer irreparable loss and injury for not allowing them to make construction on the suit property. Therefore, in view of our discussions, made herein above the entire amount payable by the defendant-respondent having been paid, deposited in favour of plaintiff-appellant, there is no reason to pass an order of injunction against the defendants-respondents when the plaintiff-appellant Page 26 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined would not face substantial injury for permitting the defendant- respondent to proceed with the construction in the suit property.
17. In the case of Best Sellers Retail (India) Pvt. Ltd., (Supra), the Hon'ble Apex Court held that it is the settled principle of law that even where a prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of the refusal of temporary injunction was not irreparable. It was further held that when damages are claimed, it cannot be said that plaintiff will suffer irreparable loss if injunction is not granted.
18. On the facts placed on record, it has been submitted by learned Senior Advocate for the respondent that the land is under development. Two towers have been built and third tower is under construction for the purposes of shopping complex. The plaintiffs have also quantified damages in the plaint. Therefore, also the balance of convenience and question of irreparable loss would tilt in favour of defendant Nos. 19 to 21.
19. In view of the above discussion and the facts which surface on record, it is sufficient to hold that the learned Trial Court has not Page 27 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026 NEUTRAL CITATION C/AO/230/2025 JUDGMENT DATED: 01/05/2026 undefined committed any error and the impugned orders are in consonance with the settled position of law. Hence, all Appeals from Orders are hereby dismissed. The learned Trial Court shall decide the suit as early as possible preferably within a period of six months from the date of receipt of this order without being influenced by the observations made hereinabove. The learned Trial Court shall decide the suit strictly on merits, evidence and position of law.
(D. M. DESAI,J) MUSKAN Page 28 of 28 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue May 05 2026 Downloaded on : Tue May 05 21:34:27 IST 2026