Prakash Babulal Sheth vs Shashikalal Mayur Sheth
2021 Latest Caselaw 3272 Guj

          C/FA/1076/2019                                    ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 1076 of 2019
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                  In R/FIRST APPEAL NO. 1076 of 2019
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                            PRAKASH BABULAL SHETH
                                    Versus
                           SHASHIKALAL MAYUR SHETH
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Appearance:
VASIM MANSURI(8824) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 2,2.1,2.3
VAIBHAV V GOSWAMY(9019) for the Defendant(s) No. 2.2,2.4
VENU H NANAVATY(7458) for the Defendant(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 25/02/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned senior advocate Mr. Deven Parikh with learned advocate Mr. Vasim Mansuri for the appellants and learned senior advocate Mr. Anshin Desai with learned advocate Ms. Venu Nanavaty for the respondent No.1.

2. The present First Appeal arises out of judgment and decree dated 30.1.2019 passed by learned Additional City Civil Judge, City Civil Court No. 11, Ahmedabad City. Alongwith the present First Appeal, Civil Application for stay has also been filed by the appellants - the original defendants.

3. In Civil Suit No. 2245 of 1998 instituted by the original plaintiff-

C/FA/1076/2019 ORDER

respondent No.1 herein, it was prayed to declare that the defendant No.1 did not have authority to sell the suit property to defendant Nos. 2 and 3 under the power of attorney dated 19.1.1983, to further declare that the plaintiff continued to be lawful owner of the property notwithstanding. It was prayed further to declare the registered sale deed dated 9.12.1996 to be illegal and the direction was prayed for against defendant No.2 to hand over the vacant and peaceful possession of the portion purchased by her under the aforementioned deed. The next prayer in the suit was to restrain the defendant No.2 and his agents from transferring or alienating etc. in any manner of the suit property. Also sought for was a direction against the defendant No.3 to hand over the property purchased by her under the sale deed of 1996, who was also sought to be restrained from transferring the suit property. Alternative prayer was prayed for a direction to defendant No.1 to pay to the plaintiff sum of Rs. 60 lakhs and further to reimburse the plaintiff any liability which may have been arisen because of the alleged illegal sale deed dated 9.12.1996

4. It could be prima facie gathered from the controversy that the main dispute was in respect of power of attorney dated 19.1.1983 and the authority of defendant No.1 to act thereunder to sell the suit property, which was a residential bungalow. The parties are the in-laws and family members who are strewn apart because of litigation. Alongwith the aforementioned Civil Suit, civil suit application for injunction was also filed.

4.1 The trial court proceeded to record its findings on the basis of the issues framed. In respect of the issue whether the plaintiff proved that she was owner of the suit property, the answer was in affirmative. It was also held in affirmative that sale deed by the defendant No.1 in favour of defendant Nos. 2 and 3 by registered sale deed dated 9.12.1996 was illegal. The plaintiff was held entitled to possession of the suit property

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from defendant Nos. 2 and 3. It was held that defendant could not prove that the power of attorney in favour of defendant No.1 was irrevocable and that the defendant No.1 was authorised to sell the property. About the issue regarding plaintiff's entitlment to recover 60 lakhs from the defendant No.1, the court held in negative.

4.2 The actual decree followed was as under, extracting the relevant part,

"(a) The present suit is hereby allowed and decreed.

(b) It is hereby declared that the defendant No.1 had got no authority whatsoever under the Power of Attorney dated 19th January, 1983 to sell the suit property to the defendant Nos.2 and 3 as have been done by him.

(c) It is further hereby declared that the plaintiff is the true and lawful owner of the suit property more particularly described in para 5 of the plaint and also in the Schedule hereunder written and continuous to be so in spite of Sale Deeds executed by the defendant No.1 in favour of defendant Nos.2 and 3.

(d) It is further declared that the sale effected by the defendant No.1 in favour of the defendant No.2 for half of the portion of the suit property by Registered Conveyance Deed dated 09/12/1996 is illegal, unauthorised, unjust, improper and without any authority of law and against the provisions of law.

(e) The defendant Nos.2 and 3 is hereby directed to hand over the vacate and peaceful possession of the suit property to the plaintiff within 3 Month from the order.

(f) The defendant Nos.2 and 3 are hereby restrained from selling, mortgaging, gifting, transferring of the suit property to anybody.

5. The present First Appeal came to be filed in the year 2019. This court has called for the record and proceedings. In the civil application for stay, other side has filed response.

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6. Admission of the appeal is always and would have been a matter between the court and and the appellant, but while considering the rival submissions on admission of the appeal and in respect of grant of stay, it was found expedient upon the submission of the parties that it would be more expedient to consider the order of admission of appeal simultaneously while adverting to the prayer in civil application. Learned senior advocates for both the sides also acceded.

7. It was stated that order of status quo was granted by the trial court which operated during the pendency of the suit. When this court queried both the senior counsel as to which party is in possession of the suit property as on date, rival assertions were put forth before us. Learned senior advocate for the appellants stated that they have been in possession which aspect stands fortified by virtue of the very directions in the operative part of the decree that they are required to hand over the possession. Learned senior advocate for the appellants thereafter stated that the statement was made by learned senior advocate on behalf of the respondent No.1 that the appellants shall not be dispossessed since the appeal is under consideration. On the other hand, learned senior advocate for the respondent No.1 outrightly refuted this say of learned senior advocate for the appellants that any such statement was made. We are at loss.

8. Looking to the compass of the controversy and size of evidence led by both the sides, we have no hesitation in holding that that the First Appeal will have to be admitted. As far as the interim relief is concerned, in view of the rival claim of the parties that they are in possession of the suit property, it is appropriate to direct them to state on oath by filling their respective affidavits about the status of possession of the property

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which they claim for themselves. Such affidavit may be filed within two weeks.

9. The appeal shall be next posted on 25.3.2021.

(N.V.ANJARIA, J)

(A. S. SUPEHIA, J) C.M. JOSHI