Begumbee Abdul Gafoor Died ... vs Abdul Rahim Abdul Karim Died ...
2022 Latest Caselaw 5083 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                    CIVIL APPLICATION NO11389 OF 2021
                           IN SA NO.306 OF 2006

               SMT. BEGUMBEE W/O ABDUL GAFOOR
               DIED THROUGH ITS LRS. AND OTHERS
                              VERSUS
                 ABDUL RAHIM S/O ABDUL KARIM
               DIED THROUGH ITS LRS. AND OTHERS
                                .....
            Advocate for Applicants : Mr. K. M. Nagarkar
 Advocate for Respondents No.1/1 to 1/3, 1/4/1 to 1/4/10 in SA: Mr.
                             V.I. Thole
Advocate for Respondents No.2/1 to 2/6 : Mr. Mujtaba Gulam Mustafa
            Advocate for Respondent No.1 : Mr. T. Vinod
                                .....

                                       CORAM : SMT.VIBHA KANKANWADI, J.

                                       Date of Reserving The Order                :
                                       29-11-2021

                                       Date of Pronouncing The Order :
                                       07-06-2022
ORDER :

1. Present application has been filed for grant of injunction. The

prayer Clause 'B' runs thus :-

"(B) Pending hearing and final disposal of the present second appeal the respondents be restrained from alienating, transferring and/or creating any third party interest or change the nature of the suit properties, by defendants or through their agent or through any one on their behalf in view of the facts and circumstances

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mentioned in the civil application and in the interest of justice."

2. The applicants are the original plaintiffs/appellants who have

filed the Second Appeal No.306 of 2006 to challenge the Judgment

and decree dated 10-02-2006 in Regular Civil Appeal No.257 of

2004 passed by the learned 3rd Adhoc Additional District Judge,

Aurangabad, thereby dismissing the appeal and confirming the

Judgment and decree dated 07-09-2004 in Regular Civil Suit No.125

of 2000 passed by learned 2 nd Joint Civil Judge, Junior Division,

Aurangabad. The suit was filed for partition and separate

possession. It came to be dismissed and the Appellate court has

confirmed the said decree. This Court by order dated 22-07-2008

has admitted the second appeal and framed the substantial

questions of law. The appeal is pending for final hearing and

disposal. It is to be noted that along with the appeal the

applicant/appellant had filed Civil Application No.3833 of 2006 for

not to alienate the suit property till the decision of the second

appeal. This Court had rejected that application on 29-07-2021 on

the ground that since 2006 till 2021 the applicants had not bothered

to look at the application and press the said application. It is then

stated that the original plaintiff expired and till her lifetime the

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respondents had not taken any step to sell out the property or to

change the nature of the suit property, but after her death the legal

representatives of the defendants/respondents have tried to change

the nature of the property in the month of February 2020 and also

tried to sell out the suit properties. While disposing of the earlier

application, liberty was granted by this Court to file afresh civil

application if the occasion arises. It is then stated that in the month

of February 2020 the applicants who are the legal heirs came to

know that the defendants are likely to sell the suit property and

thereupon they have given the general power of attorney to one

Fayaz Khan s/o Kabir Khan. Therefore, there is possibility that the

respondents would change the nature of the property. Now, the

applicants also contend that during the pendency of the second

appeal, the defendants have sold out the property to one Raju

Suresh Nile on 16-06-2016 and that Raju Suresh Nile has sold the

property to one Kishor Sanjay Gayake by registered sale deed dated

24-06-2021. Now this position is emerging and therefore in order to

stop the further change in the nature of the property, the

respondents deserve to be injuncted from creating any third party

interest. It has been stated that the suit property is situated at

different places and the property at village Mandki the construction

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is going on without the permission of Grampancahyat. At Suit

Property Gut No.234 and 235 in village Chikalthana also the

defendants are trying to sell out the plots and started RCC

construction without any permission from the competent authority.

Hence, the application.

3. Heard learned Advocate Mr. K. M. Nagarkar for applicants,

learned Advocate Mr. Mujtaba Gulam Mustafa for respondents

No.2/1 to 2/6, and learned Advocate Mr. V. I. Thole for respondents

No.1/1 to 1/3, 1/4/1 to 1/4/10 in second appeal.

4. The learned Advocate appearing for the applicants who are the

legal representatives of the appellant in second appeal/original

plaintiff has stated that this Court while rejecting Civil Application

No.3833 of 2006 observed that since the application was not

pressed from 2006 till 2021, it appears that there is no cause of

action for the applicant to seek injunction. However, liberty was

granted to the applicants to file similar application if occasion arises.

The legal representatives of the appellants have now gathered the

information and came to know about the disposal of part of the

property and also in respect of construction those are going on in

the suit property, therefore, in order to restrict the change in the

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nature of the property, it is necessary that the injunction should be

granted. He relied on the various documents in the form of copies of

sale deed, applications with the revenue authorities, 7/12 extracts

etc. to support his contention.

5. The learned Advocate Mr. Mujtaba Gulam Mustafa for

respondents No.2/1 to 2/6 vehemently submitted that this Court has

rejected Civil Spplication No.3833 of 2006 which was for the same

purpose and no new ground has been shown by the applicants, and

therefore, the present application is barred by the principles of res

judicata. He relied on the decision in U.P. State Road Transport

Corporation Vs. State of U.P. and Another, reported in AIR (2005)

(SC) 446 : (2005) 1 SCC 444, wherein it has been observed that :-

"The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings."

He further submitted that the alleged alienations were in the year

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2016 and also the construction had commenced prior to 29-07-2021

on which day this Court had rejected the earlier application. There

is no reason given by the applicants as to why they had not pressed

for the said application which they had filed in the year 2006 till

2021. Merely by saying that no steps were taken by the

respondents to dispose of the property, they had not pressed the

application will not be a correct position and that statement is also

contrary to the factual aspect which the applicants want to agitate

now by producing documentary evidence. Further, as regards the

application of Section 52 of the Transfer of Property Act is

concerned, the said provision is based on public policy and it has

been enacted in order to put an end to the litigation. However, the

subsequent purchasers will get it subject to the outcome of the

decision. Reliance has been placed on Madhukar Nivrutti Jagtap and

Others Vs. Smt Pramilabai Chandulal Parandekar and Others,

reported in (2019) AIR (SC) 4252 : (2020) 15 SCC 731, wherein it

has been held that,

"It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In

7 CivAppln 11389-2021

other words, the transfer remains valid subject, of course, to the result of the suit. The pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court."

Under such circumstance, the injunction cannot be clamped on the

respondents. The learned Advocate Mr. V. I. Thole for respondents

No.1/1 to 1/3, 1/4/1 to 1/4/10 also made submissions in support of

the submissions made by learned Advocate Mr. Mujtaba Gulam

Mustafa for respondents 2's heirs.

6. At the outset, it is to be noted that the earlier Civil Application

No.3833 of 2006 came to be rejected by this Court by order dated

29-07-2021. It appears that the said order is not challenged by the

present applicants further. This Court had noted that though the

application was filed in the year 2006, no efforts were made by the

applicants to have an order in their favour. No doubt the second

appeal is admitted, but in order to protect the nature of the property

it appears that though application was filed, no efforts were made by

the original appellant. While deciding that application also it has

been observed that there was an attempt by the learned Advocate

for the applicant to show that now there is an attempt on the part of

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the respondents to create third party interest, but then this Court

noted that the applicant failed to satisfy the Court as to how

whatever the steps now the respondents are trying to take would

give a cause of action for the applicant which is going back to the

date in 2006. That application came to be rejected as it suffers from

delay and latches. The original plaintiff/appellant in second appeal

expired on 29-11-2013. It appears that her legal representatives

were brought on record by order dated 01-04-2021. This Court at

that time also, that is while deciding Civil Application No.4742 of

2020, observed that there is delay of seven years in bringing the

legal representatives of the appellant on record. Along with the said

application why application which is now filed i.e. present Civil

Application No.11389 of 2021 was not filed, is a question. The

applicants legal representatives cannot be allowed to say that they

were not aware of alienation of some of the property and starting of

construction work in other two properties by the respondents around

2016. Definitely the earlier order passed by this Court is creating

hurdles for the present application. In other words, the present

application is barred by principles of res judicata in view of the

decision in U. P. State Road Transport Corporation (Surpa). The

legal position explained in Madhukar Nivrutti Jagtap (Supra) also is

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applicable here, and further reliance can be placed in the decision in

G. T. Girish Vs. Y. Subba Raju (D) by Lrs and Another, reported in

2022 SCC OnLine SC 60, wherein Hon'ble Supreme Court has

observed that :-

"The right of the party to the suit who conveys his right by a sale is extinguished. All that Section 52 of the Transfer Property Act provides is that the transfer which is made during the pendency of the proceeding is subjected to the final result of the litigation."

Therefore, when the rights of the party to the present proceeding

even after the transfer is subject of the present litigation and the

applicants were not diligent enough in coming to this Court.

Further, both the Courts below are against the original appellant are

the points for which the balance of convenience is tilting in favour of

the respondents. Now as regards the further construction that is

coming up, definitely the ratio in Madhukar Nivrutti Jagtap (Supra)

and G.T. Girish (Supra) would come into play. Therefore, this is not

a fit case where injunction should be granted as prayed during the

pendency of the second appeal. Hence, the application stands

rejected.

(SMT. VIBHA KANKANWADI) JUDGE vjg/-.