Omkar Infrastructure vs Legal Heirs Of Deceased ...
2021 Latest Caselaw 1508 Guj

         C/AO/270/2018                                 JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/APPEAL FROM ORDER NO. 270 of 2018
                              With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
              In R/APPEAL FROM ORDER NO. 270 of 2018
                              With
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2019
              In R/APPEAL FROM ORDER NO. 270 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
==========================================================
1    Whether Reporters of Local Papers may be allowed              No
     to see the judgment ?

2    To be referred to the Reporter or not ?                       No

3    Whether their Lordships wish to see the fair copy             No
     of the judgment ?

4    Whether this case involves a substantial question             No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                   OMKAR INFRASTRUCTURE
                           Versus
      LEGAL HEIRS OF DECEASED MANJULABEN D/O LALLUBHAI
         SUKHABHAI AND WIFE OF LAXMANBHAI RATHOD
==========================================================
Appearance:
ARPIT R SINGHVI(9524) for the Appellant(s) No. 1
DELETED(20) for the Appellant(s) No. 2
 for the Respondent(s) No. 1,2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4,5
SERVED BY PUBLICATION IN NEWS(75) for the Respondent(s) No.
10,1.1,1.2,6,7,8,9
==========================================================
 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                           Date : 02/02/2021
                           ORAL JUDGMENT

1. This matter is taken up through video conference.

2. Civil Application No. 3 of 2019 is filed praying for to join as

C/AO/270/2018 JUDGMENT

party respondent No. 11. He states at bar that the applicant of Civil Application No. 3 of 2019 (proposed respondent No. 11) was also joined as a party opponent in the Special Civil Suit No. 501 of 2016 pending before the learned trial Court and to that effect he has also moved the draft amendment. Accordingly, having heard the learned advocates for the parties present and considering the averments made in the Civil Application, the same is allowed. The applicant of Civil Application No. 3 of 2019 is permitted to be joined as party respondent No. 11 in the main Appeal From Order No. 270 of 2018. Necessary amendments be carried accordingly.

3. The main appeal from order is filed by the appellants with following main prayer:

"(B) Your Lordships may please to allow this Appeal From Order by quashing and setting aside the judgment and order passed by the Hon'ble 4th Additional Senior Civil Judge Court, Ahmedabad (Rural), Mirzapur at Ahmedabad in Spl. Civil Suit No. 501 of 2016 below Exh. 5 on dtd. 10-10-18 and the said injunction application Exh. 5 may please be ordered to be dismissed with cost throughout."

4. The facts in nutshell of the case are that respondent Nos. 1/1 and 1/2 filed Special Civil Suit No. 501/16 against the appellants and respondent Nos. 2 to 11 on 10.10.2016 for cancellation of sale deeds, determination of share of plaintiffs for partition of suit land. There is no prayer of permanent injunction in the plaint. It is a settled law that when there is no prayer for permanent injunction in the plaint, temporary injunction can not be granted. That suit is filed in respect of non- agriculture land bearing Block No. 892/1 paiki (892/1/1 and Survey No. 892/1/3 admeasuring 16346 Sq. Mtrs and 1339 Sq. Mtrs, of Vastral, Taluka - Vatva, District- Ahmedabad and also for other pieces of lands to which appellants are not concerned. The land was originally in the ownership of Aataji Pochaji, who

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died leaving no class-I heirs. Hence, said land was acquired by his brother's daughter Maniben Aabhaji wife of Lallubhai Sukhabhai. Maniben Aabhaji died on 19.03.2001, leaving her legal heirs namely Raysangbhai (Son), Madhuben, Nandaben and Kunvarben (daughters). It is alleged in the plaint that Manjulaben was also her daughter and she died prior to the death of Maniben and therefore her name was not entered in revenue record.

4.1 It is stated that respondent Nos. 2 to 5 have sold and transferred the land of survey No. 892/1/1, admeasuring 16346 Sq. Mtrs by Sale deed dated 28.07.2016 to the present appellant No. 1 and said respondent Nos. 2 to 5 have sold the land of Survey No. 892/1/3 admeasuring 1334 Sq. Mtrs to the present appellant No. 2. It is claimed by the Respondent No. 1/1 and 1/2 that they are the legal heirs of deceased Manjulaben and therefore, they have 1/5th share in the suit land. On this allegation suit is filed for cancellation of sale deed and for determination of said 1/5th share and for partition. There is no relief for permanent injunction prayed for in the suit. The suit was filed on 10.10.2016 and thereafter, the respondent Nos. 1/1 and 1/2 have executed deeds of confirmation and thereby confirmed the sale transaction took place in favour of the appellant No. 1 herein in respect of land of Survey No. 892/1/1. It is stated that said deed of confirmation are not under challenged in the said suit and /or by filing by separate litigations. The suit was filed by power of attorney holder of respondent Nos. 1/1 and 1/2 i.e. by one Rakesh Laxmanbhai Bharwad. As there were registered deeds of confirmation executed by respondent Nos. 1/1 and 1/2 and as the matter was settled, an application Exh. 7 was given by the said power of

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attorney holder on the record of suit so as to delete the present appellants who are defendant Nos. 5 and 6 from the Suit. The trial Court has allowed the said application by order dated 21.01.2017. Thereafter respondent Nos. 1/1 and 1/2 personally appeared through another advocate before the learned trial Court and gave an application Exh. 11 so as to recall the order passed below Exh. 7,the said application has not been decided and order below Exh. 7 stand on record. It is a matter of fact that though respondent Nos. 1/1 and 1/2 have executed deeds of confirmation, they have suppressed the said fact even in the said application Exh. 11. It is stated that the process of the plaint and injunction application are not served on the present appellants through Court's bailiff. An application Exh. 13 was given with a prayer to issue the process through RPAD. It is stated that no ground for substituted service are carved out in the said application, there is only order 'granted' and therefore, same is not in confirmity with the provision of substituted service under CPC. That respondent Nos. 1/1 and 1/2 submitted postal receipt of RPAD and computer print showing delivery of RPAD along with list Exh. 16. On that basis, it has been alleged that the process are served on the present appellants. That acknowledgment of RPAD is not available on the record of trial Court, there is no proof as to the service of process on the appellants on record. It is stated that learned trial Court heard application Exh. 5 ex-parte and allowed the said application and ordered to maintain status-quo so as to title and possession of the suit land till disposal of the suit. That present respondent Nos. 1/1 and 1/2 gave public notice in Divya Bhaskar on 14.10.2018 in which it has been stated that the suit was filed and injunction is obtained against the appellants and therefore, appellants made enquiry in the court record and thereafter

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applied for certified copy of the entire record and on getting the same, present appeal is filed. The said order is obtained by suppression of material fact that respondent Nos. 1/1 has executed confirmation deed in favour of appellant No. 1 on dated 29.12.2016 and the same is registered with Sub-Registrar, Ahmedabad-12 (Nikol) at Sr. No. 17913. In the said deed of confirmation, respondent No. 1/1 has confirmed the sale deed executed in favour of appellant No. 1. It is stated that the said order is obtained by suppression of material fact that respondent No. 1/2 has executed confirmation deed in favour of appellant No. 1 on 30.12.2016 and the same is registered with Sub-Registrar, Ahmedabad- 12(Nikol) at Sr. No. 17915. In the said deed of confirmation, respondent No. 1/2 has confirmed the sale deed executed in favour of appellant No. 1. There is further suppression of material fact about the receipt of valuable consideration by RTGS by the respondent Nos. 1/1 and 1/2 from the appellants.

5. Admit. Learned advocate Mr. S. P. Majmudar for the respondent No. 11 waives service.

6. It is pertinent to note that notice issued by this Court is duly served upon the respondents i.e. respondent Nos. 2 to 5 have been served by direct service whereas, notice to respondent Nos. 10,1.1,1.2,6,7,8,9 has been served by publication, however none has appeared for them. It is also pertinent to note that this Court had issued notice firstly on 01.11.2018. Thereafter, fresh notice was also ordered to be issued on 27.03.2019. As said earlier, the respondents have been served, however, they have chosen not to appear before this Court except for respondent No. 11. Accordingly, with the consent of learned advocates for

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the respective parties present, the matter is taken up for final hearing today.

7. Heard learned Senior advocate Shri Rashesh S. Sanjanwala assisted by learned advocate Mr. Arpit R. Singhvi for the appellants and learned advocate Mr. S. P. Majmudar for respondent No. 11.

7.1 Learned Senior advocate Shri Rashesh S. Sanjanwala for the appellants has vehemently and fervently argued that in the present case, there is gross suppression of material facts by the original-plaintiff including service of notice to the defendant nos. 5 and 6 and therefore, the order dated 10.10.2018 passed below Exh. 5 by the learned 4th Additional Senior Civil Judge Court, Ahmedabad (Rural), Mirzapur at Ahmedabad in Spl. Civil Suit No. 501 of 2016 is required to be set aside and the matter is required to be remanded back for deciding the same afresh. Learned Senior advocate Shri Sanjanwala has heavily submitted that Lallubhai is having heirs wherein initially plaintiff joined defendant nos. 5 and 6 but during pendency of suit, respondent Nos. 2 to 5 have sold out the land of Survey No. 892/1/1 to the present appellant No. 1 and the land of Survey No . 892/1/3 to the present appellant No. 2. Therefore, in all two sale deeds with separate persons are executed. The defendant nos. 5 and 6 not served who are petitioners before this Court. Originally the Special Civil Suit No. 501 of 2016 is filed on 10.10.2016, wherein the defendant nos. 5 and 6 were party. During the pendency of suit, confirmation deed taken place but the same is not informed to the learned trial Court and the learned trial Court passed an order of status-quo. Subsequently, the plaintiff deleted the claim upon the the defendant nos. 5 and 6 and the same status-quo is operating against the defendant nos. 5 and

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6, wherein, an application was given by the present appellants but the same was rejected, therefore, on the grounds of suppression of material facts by the original-plaintiff and also on the grounds of non service of notice to the defendant nos. 5 and 6, it is urged that the present appeal may be allowed and the impugned order may be set aside.

8. As against this learned advocate Mr. S.P. Majmudar for the respondent No. 11 states at bar that the applicant of Civil Application no. 3 of 2019 is also joined as a party opponent in the Special Civil Suit No. 501 of 2016 pending before the learned trial Court. He fairly submitted that in facts and circumstances of the case appropriate order may be passed.

9. Having regard to the submissions advanced by the learned Senior advocate for the appellants and hearing the learned advocate for the respondent No. 11 and looking to the facts and circumstances of the case, ex-facie, the order of the learned trial Court appears to be perverse in the absence of facts with regard to the confirmation deed as also for want of an opportunity of being heard to the present appellants. Accordingly, in the considered opinion of this Court, the matter requires hearing afresh and hence, without going into the detailed merits of the case, ends of justice would meet if the matter is remanded back to the trial Court concerned.

10. In the backdrop as aforesaid, the appeal is allowed and the order dated 10.10.2018 passed below Exh. 5 in Special Civil Suit No. 501 of 2016 by the learned 4th Senior Civil Judge, Ahmedabad (Rural) Mirzapur, Ahmedabad is hereby set aside. The matter is remanded back to the trial court concerned to decide afresh application Exh. 5, as expeditiously as possible, preferably within a

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period of four months from the date of receipt of writ of this order, on its own merits, giving due opportunity of hearing to both the sides, in accordance with law, without being influenced by the order passed by this Court.

11. Civil Application No. 3 of 2019 is disposed of as allowed.

12. In view of main appeal is allowed Civil Application No. 1 of 2018 does not survive and the same stands disposed of accordingly.

(A. C. JOSHI,J) prk