Lhrs Of Decd. Gautambhai ... vs Lhrs Of Decd. Nathiben D/O Sukaji ...
2021 Latest Caselaw 15734 Guj

    C/SCA/11604/2021                             JUDGMENT DATED: 06/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11604 of 2021

                                   With

              R/SPECIAL CIVIL APPLICATION NO. 11606 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?                                            NO

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 ?

==========================================================
      LHRS OF DECD. GAUTAMBHAI KUBERBHAI PATEL (KALAL)
                            Versus
    LHRS OF DECD. NATHIBEN D/O SUKAJI MOTIJI KALAL AND WD/O
                   MOTILAL MADHAVJI KALAL
==========================================================
Appearance:
MR MRUGEN K PUROHIT(1224) for the Petitioner(s) No. 1,1.1,1.2
 for the Respondent(s) No. 2,2.1
. for the Respondent(s) No. 1
MR YH VYAS(1001) for the Respondent(s) No. 1.1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 06/10/2021

                        COMMON ORAL JUDGMENT

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

1. Rule returnable forthwith. Learned advocate Mr. Y.H. Vyas

waives service of notice of rule for and on behalf of respective

respondent.

2. As the common question and facts are involved in both

petitions, joint request was made by learned advocates appearing

from the respective parties to decide both the petitions by passing

common order.

3. The petitioners in Special Civil Application No.11604 of 2021

have challenged the order dated 17.07.2021 passed below Exh.6

and 14 in Regular Civil Appeal No.4 of 2021 and petitioners in

Special Civil Application No.11606 of 2021 have challenged the

order dated 17.07.2021 passed below Exh.7 and Exh.15 in Regular

Civil Appeal No.5 of 2021 by learned Additional District Judge,

Sabarkantha (Idar).

4. Short facts of the present case may be referred as under:

Regular Civil Suit No.11 of 2009 was filed by the respondent

No.1 against the petitioners and respondent No.2 for declaration

and permanent injunction wherein the plaintiff has challenged

registered sale deed dated 10.07.2006 executed in favour of the

present petitioner and Shri Mushbhai Kala by the power of attorney

holder on 24.01.2007. Respondent No.1, original plaintiff also filed

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

Regular Civil Suit No.59 of 2009 before the learned Civil Court at

Idar for declaration and permanent injunction and challenged the

power of attorney dated 10.07.2006 alleged to have been executed

by the plaintiff in favour of the defendant in the suit. The said suit

was contested by the defendant by filing the written statement.

Both the suits were consolidated by the trial court and issues were

framed vide Exh.29. Interim injunction application, Exh.5 filed in

Regular Civil Suit No.59 of 2009 was rejected by the trial court. In

Regular Civil Suit No.11 of 2009, application below Exh.5 as well

as application Exh.12 were filed for injunction, which were also

rejected by the trial court vide its judgment and order dated

20.10.2009. Against the said order, Appeal From Order No.67 of

2009 was preferred before the learned Principal District Judge,

Sabarkantha by the original plaintiff, in which vide judgment and

order dated 14.12.2010, order of status quo was passed. As both

the suits being No.59 of 2009 and No.11 of 2009 were

consolidated, common evidence was led by the parties and after

hearing the parties, learned Principal Civil Judge, Vijaynagar, vide

judgment and order dated 24.03.2021, was pleased to allow both

these suits. Present petitioners, being aggrieved with the judgment

and order dated 24.03.2021 in both the suits, preferred Regular

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

Civil Appeal Nos.4/ 2021 and 5/ 2021 before the District Court,

Sabarkantha. They also filed one application below Exh. 6 and 14

for injunction in Regular Civil Appeal No.4 of 2021. They also filed

two applications and Exh.7 and 15 in Regular Civil Appeal No.5 of

2021. Learned Additional District Judge, after hearing the parties,

was pleased to reject the injunction application filed by the

petitioners below Exh.7 and 15 in Regular Civil Appeal No.5 of

2021. The applications Exh. 6 and 14 preferred by the petitioner in

Regular Civil Appeal No.4 of 2021 was also rejected vide order

dated 17.07.2021. Hence, present petition preferred by the

petitioners.

5. Heard learned advocate for the petitioners and learned

advocate for the respondents.

6. It was submitted by learned advocate for the petitioners that

refusal of granting injunction as prayed by the petitioners by the

court below is contrary to facts and law. That impugned orders

passed by the learned Additional District Judge at Idar below Exh.6

and Exh.14 in Regular Civil Application No.4 of 2021 as well as

below Exh.7 and 15 in Regular Civil Appeal No.5 of 2021 are

erroneous and illegal. It was further submitted that in Regular Civil

Suit No.59 of 2009 preferred by the respondent against present

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

petitioners before the District Court at Himmatnagar, Dist­

Sabarkantha, the First Appellate Court has observed that present

petitioners are the bona fide purchaser of the suit property and they

are in possession of the suit property at the time of concluding the

Civil Appeal From Order on 14.12.2010. The petitioners were

directed to maintain the status quo of the suit property till the final

disposal of the suit having their possession. It is further submitted

that the petitioner, being the purchaser of the suit property, are in

possession by virtue of sale deed since last more than 12 years, and

therefore, the District court could not refuse to grant injunction

during the pendency of the appeal. It is further submitted that trial

court has failed to consider the provision of Order 39, Rule 1 and 2

of the Code of Civil Procedure. In support of his arguments, learned

advocate for the petitioners has relied upon the judgment of this

Court reported in 1996 (1) GLH (U.J.) Page 28.

7. Per contra, learned advocate appearing from the respondents

has strongly objected the submissions made by learned advocate for

the petitioners and supported the observations and finding arrived

at by the learned Additional District Judge, Sabarkantha at Idar in

Regular Civil Appeal No.4 of 2021 and Regular Civil Appeal No.5 of

2021 in connection with the order passed below Exh.6 and 14 as

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

well as Exh.7 and 15 refusing for interim injunction. It is further

submitted that the petitioners were never in the possession of the

suit property as clear findings after recording the evidence was

arrived at by deciding the Regular Civil Suit No.59 of 2009 by the

trial court. It is further submitted that trial court has clearly

observed that document Exh. 78 was not notarized nor any proper

stamp was affixed, and therefore, the said document cannot be

accepted by the Court. It is further submitted that as per the finding

arrived by the trial court in the suit, the defendant no.1 has not

given any power to execute the sale deed in favour of the

defendant No.2 to 7 (present petitioners). The power was misused

and registered sale deed was executed, therefore it was beyond the

scope of the defendant No.1. That the plaintiff has succeeded in

establishing his case by proving issue Nos.1 and 2 and defendant

has failed to establish the issue No.3. It is further submitted that

while passing the order by the trial court on 24.03.2021, no prayer

was made by the present petitioners to grant status quo or any

interim relief. It is further submitted that, thereafter, at the time of

preferring the appeal also, no prayer was made by the present

petitioners for granting interim relief in a form of status quo. That

for the first time, this application was submitted by the present

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

petitioners in their appeal before the District Court for granting

interim relief in a form of status quo. It is further submitted that

there is no substance in the application preferred by the present

petitioners before the District Court and their appeal. That, the

learned District Court has rightly dismissed the prayer made by the

present petitioner and no interference is warranted by this Court

under Article 227 of the Constitution of India. In support of his

arguments, learned advocate appearing for the respondent has

relied upon the judgments of the Hon'ble Apex Court reported in

2012 (1) SCC Page 656. , 2009 (7) SCC Page 363, 2017 (15)

SCC 316, 2021 (3) GLH Page 105 and 2017 (14) SCC Page 722.

Ultimately, it was requested by learned advocate for the

respondents to dismiss the present petition.

8. Having heard learned advocates for the respective parties and

documents produced on record, it appears that the facts of filing

two different suits by the plaintiff against the defendants/present

petitioners, both the suits were consolidated by the court below and

common evidence was recorded as per the issue framed vide Exh.

29 by the trial court. As per the submissions of the present

petitioners that the suit property was purchased by them from the

original defendant No.1 through his power of attorney­defendant

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

No.2 by registered sale deed. It appears from the record produced

before the Court that the plaintiff filed an application Exh.5 in

Regular Civil Suit No.59 of 2009 praying for interim injunction

under Order 39 Rule 1 and 2 of the C.P.C. The said application

preferred by the plaintiff was rejected by the trial court in Regular

Civil Suit No.59 of 2009. It also appears that in Regular Civil Suit

No.11 of 2009, the plaintiff filed application Exh.5 as well as

Exh.12 praying for interim injunction against the defendant

(present petitioners), which were also rejected by the trial court

vide judgment and order dated 20.10.2009. It is not in dispute that

against the said order, Appeal From Order No.69 of 2009 was

preferred before the learned Principal District Judge, Sabarkantha

by the original plaintiff/respondent in which by judgment and

order dated 14.12.2010, order of status quo was passed and appeal

was disposed of. It would be necessary to observe the order passed

by the leaned 2nd Additional District Judge, Himmatnagar dated

14.12.2010 in Civil Appeal From Order No.67 of 2009. As per the

observations made by the court below, respondent nos.2 to 7

(present petitioners) were in possession of the suit property being

bona fide purchasers, and therefore, it was opined by the learned

Additional District Judge that if the status quo would be

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

maintained by the present petitioners in respect of the suit property

till final disposal of the suit, there would be no prejudice or damage

likely to be caused to the either side, and therefore, the order

passed below Exh. 5 and Exh.12 in Regular Civil Suit No.11 of

2009 dated 26.10.2009 was quashed and set aside. Respondent

Nos.2 to 7 (present petitioners) were directed to maintain status

quo in respect of the suit property till final disposal of the Civil Suit

as they were in possession of the suit property vide order dated

14.12.2010. Both the suits were decided by the trial court on

24.03.2021 till the status quo granted by the learned Additional

District Court in Civil Appeal From Order No.67 of 2009 was

continued. Against the judgment and decree passed by the trial

court dated 24.03.2021 in Regular Civil Appeal Nos.4 and 5 of

2021 preferred by the present petitioners. The question of plaintiff

has not stepped into witness box, and therefore, adverse inference

ought to have been drawn by the court below while passing the

decree would be a subject matter before the District Court in the

appeal preferred by the present petitioners in Regular Civil Appeal

Nos.4 and 5 of 2021. Another question of power of attorney duly

notarized before the Executive Magistrate as well as original

plaintiff accepted the consideration at relevant point of time by

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

executing Kabulatnama/Memorandum of Understanding about the

acceptance of consideration and thereafter, power of attorney was

executed and the sale deed would also consider in the appeal

preferred by the present petitioner, which are pending before the

trial court.

9. Admittedly, till final disposal of both the civil suits decided on

24.03.2021 status quo was maintained by the either side. It is true

that at the time of pronouncement of the judgment, no specific

application was given by the present petitioners to maintain the

status quo for praying any interim relief. It is also admitted facts

that while preferring Regular Civil Appeal Nos.4 and 5 of 2021 by

the present petitioners, no such relief was prayed by the

petitioners, but thereafter filing of the different application, interim

relief was prayed by the petitioner, which was rejected by the trial

court.

10. This Court in the case of Bhanubhai Mohanlal Bhatt and

Another versus M/s Vinayak Developer, Bhuj, through its

partners reported in 1996 (1) GLH (U.J.) 28, held that when the

appellate court dealing with Appeal, from Order finds that no case

is made out for the grant of interim relief, it must immediately set

down the appeal for hearing and decide it with application for

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

interim injunction. It was further held that the very ground which

convinced the learned Judge to reject the application would be the

ground to reject the appeal. The course adopted by the learned

Judge rendered in meaningless, serious note was taken by this

Court of repeating exercise of powers by the learned Judge.

11. In a case cited in 2012 (1) SCC 656, referring Section 54 of

the Transfer of Property Act it was held that it makes clear " that a

contract of sale, that is an agreement of sale does not, of itself,

create any interest in or charge on such property.

12. In a case cited in 2009 (7) SCC Page 363, Hon'ble Apex

Court opined that "practice of executing transfer of property

through sale agreement, general power of attorney, will rather than

executing and registering deed of conveyance resulting into that

evasion, loss of revenue, concealment of black money etc., such

practice was deprecated by the Court.

13. In a case cited in 2017 (15) SCC Page 316, it was held that

"immovable property can be transferred only by a registered

instrument and there can be no transfer of any right, title or

interest in any immovable property except by way of a registered

document.

14. In a case cited in 2021 (3) GLH Page 105, it was held that

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

"supervisory jurisdiction under Article 227 is confined only to see

whether subordinate court or Tribunal has proceeded within its

parameters and not to correct an error apparent on the face of

record, much less, an error of law. High Court cannot act as an

Appellate Authority and has only to see that an inferior court has

to function within the limits of its authorities. When a subordinate

Court has arrived at a view which is a possible view, even if a

different view is possible, High Court will not , in exercise of

powers under Article 227 correct such order. Powers under Article

227 has to be exercised sparingly on equitable principle.

15. In a case cited in 2017 (14) SCC Page 722, it was held that

"a judicial decision containing the principle, which forms an

authoritative element termed as ratio decidendli. An interim order

which does not finally and conclusively decide an issue which

cannot be a precedent. Any reasons assigned in support of such

final interim order containing prima facie findings, are only

tentative and any interim directions issued on the basis of such

findings are temporary arrangements to preserve the status quo till

the matter is finally decided, to ensure that the matter does not

become either infrucutuous or a fail before the final hearing.

16. The ratio and judgments relied upon by the learned advocate

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

for the respondents are certainly considered by this Court and

applicable to this court also.

17. Considering the issue involved in Regular Civil Appeal Nos.4

and 5 of 2021 preferred by the present petitioners as well as the

issue of power of attorney executed by the defendant No.1 in

favour of the defendant No.2 and agreement to sale executed in

favour of the present petitioners, status quo granted by the learned

Additional District judge, Idar in Civil Appeal From Order No.67 of

2009 on 14.12.2010, which was continued till final disposal of the

Regular Civil Suit No.59 of 2009 vide judgment and decree passed

on 24.03.2021, this Court is of the considered view that there

would be no prejudice or any injustice likely to be caused to the

respondent, if the status quo granted as prayed for by the

petitioners would cause any injustice to the respondents. Hence,

these petitions are hereby allowed.

18. The order dated 17.07.2021 passed by the learned Additional

District Judge, Sabarkantha below Exh.6 and 14 in Regular Civil

Appeal No.4 of 2021 as well as below Exh.7 and 15 in Regular Civil

Appeal No.5 of 2021 stand quashed and set aside. The prayer made

by the present petitioners in their application shall be granted till

final disposal of their appeal i.e. Regular Civil appeal Nos.4 and 5

C/SCA/11604/2021 JUDGMENT DATED: 06/10/2021

of 2021 pending before the First Appellate Court.

Rule is made absolute to the aforesaid extent.

(B.N. KARIA, J) SUYASH