Bhavanbahi Dhanabhai Bharvad vs Manaji Mangaji Thakor-Decd. ...
2022 Latest Caselaw 682 Guj

      C/AO/187/2016                             ORDER DATED: 20/01/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/APPEAL FROM ORDER NO. 187 of 2016
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
                 In R/APPEAL FROM ORDER NO. 187 of 2016
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               BHAVANBAHI DHANABHAI BHARVAD
                            Versus
     MANAJI MANGAJI THAKOR-DECD. THROUGH LEGAL HEIRS, & 5
                           other(s)
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
ULLASH N GOHIL(8357) for the Appellant(s) No. 1
DECEASED LITIGANT(100) for the Respondent(s) No. 1,5.3
MR DIGANT M POPAT(5385) for the Respondent(s) No. 6
MR DILIP L KANOJIYA(3691) for the Respondent(s) No.
1.2,1.3,1.4,1.5,1.6,1.7,2.1,2.2,2.3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1.1,2.4,3,3.1,3.2,3.3
NOTICE SERVED(4) for the Respondent(s) No. 4,5.1,5.2
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 5.3.1
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 CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                            Date : 20/01/2022

                             ORAL ORDER

1. This Appeal from Order has been preferred under Section 104, Order 43 Rule 1(R) of the Code of Civil Procedure, 1908 against the order dated 5.4.2016 passed by learned City Civil Court, Ahmedabad below Exh-7 in Civil Suit No. 3110 of 2013 whereby the injunction application i.e. Notice of Motion has been rejected.

2. It is contended that the appellant- plaintiff is in possession of the suit property since 1991 and he is cultivating the land in question. It is also contended that there was a Will which was executed in favour of the plaintiffs by the defendant and there was an entry No. 2509 dated 13.3.2013 pertaining to that effect

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in the revenue record. It is contended that the trial Court has failed to appreciate the fact that the report of Court Commissioner clearly shows that the plaintiff is in possession of the suit property. It is also contended that the plaintiff has paid full consideration of the land and since he was in possession, the trial Court ought to have granted injunction as question of immovable property is involved. It is contended that without considering the report of the Court Commissioner, the trial Court has erroneously observed that the plaintiff is in possession of the suit property and has prayed to quash the interim order and grant injunction.

3. Heard Mr. Karathiya, learned advocate for Mr. S.P. Majmudar, learned advocate for the appellant and Mr. Digant Popat, learned advocate for the defendant No.6.

4. The appellant is the original plaintiff and the respondents are defendants before the trial Court. For the sake of brevity and convenience, the parties are referred to in this order as per their status before their trial Court i.e. plaintiff and defendants.

5. Mr. Karathiya, learned advocate for the plaintiff has vehemently submitted that there was agreement to sell executed between the parties in the year 1991 and Rs.2,06,000/- was paid by way of cheque and thereafter certain other amount was paid and in all Rs.2,55,000/- has been paid. He has submitted that as per the conditions averred in the agreement to sell, it was a new tenure land and it was to be converted into old tenure land and it was agreed that after such conversion, sale-deed was to be executed. While referring to the agreement to sell wherein

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certain hand written averment is made regarding the payment, it is submitted that the plaintiff has paid huge amount of Rs. 2,56,000/- and there is also mention of one cheque of Rs.5000/-. According to him, since 80% amount has been paid, the possession was handed over to the plaintiff by the defendant. He has submitted that thereafter the property has been sold to defendant No.6. He has also submitted that in view of the averments made in the agreement to sell (Page-4)( Paper-book page-22). The defendant has accepted the receipt of 80% of the sale price i.e. Rs.59360/- and handed over the possession to the plaintiff. He has also submitted that there was Will in favour of the plaintiff regarding the suit property being bequeathed to the plaintiff. He has also submitted that during the pendency of the proceedings panchnama was carried out of the suit property wherein it was found that the suit property land is in possession of the plaintiff. According to him, this very document has not been considered by the learned trial Court. He has submitted that the other side has not challenged the document of the plaintiff regarding the agreement to sell.

5.1 Mr. Karathiya, learned advocate has submitted that new purchaser has purchased the property pending the suit. According to him, if no injunction is granted in favour of the plaintiff then there would be multiplicity of suit and irreparable loss would be caused to the plaintiff. He has also submitted that since there was an agreement to sell in favour of the plaintiff and the rights regarding immovable property is involved, atleast status-quo ought to have been granted by the trial Court. He has prayed to allow the present appeal by granting interim injunction

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in favour of the plaintiff and against the defendant.

5.2 Mr. Karathiya, learned advocate for the appellant has relied upon the following decisions, in support of his submissions:

(1) In the case of Maharwal Khewaji Trust (Regd.), Faridkot, v. Baldevdass, reported in (2004) 8 SCC 488;

(2) In the case of Julian Educational Trust v.

Surendrakumar Roy and others, reported in (2010) 1 SCC 379;

(3) In the case of Taraben D/o. Nanubhai Kasanbhai Patel and W/o. Navinkumar Patel & Anr. v. Shaileshbhai Rangilbhai Patel, reported in 2013(2) G.L.H 252;

(4) In the case of Nitinkumar [email protected] and Others v. Smt. Savitaben Premshankar, reported in 1996 (1) G.L.H 224;

(5) In the case of Sughar Singh v. Hari Singh (Dead), Through Lrs. And others, reported in 2021 SCC OnLine

6. Per contra, Mr. Digant Popat, learned advocate for the defendant No.6 has vehemently submitted that though the agreement to sell is alleged to be of 1991, the plaintiff has remained silent for almost 21 years. He has submitted that Suit has been filed in the year 2013 i.e. almost after 21 years and there is no explanation of such delay in filing the suit after 21

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years. He has submitted that according to the plaintiff, as averred in the Plaint (Para-2) the plaintiff has paid Rs.7420/- on 28.8.1991 out of Rs.74200/-. He has submitted that if this averment is true then where is the question of payment of Rs.2,06,000/-, as averred in Para-3 of the Plaint on 3.10.1991. He has also vehemently submitted that the plaintiff is relying upon the agreement to sell of the year 1991, the Suit ought to have been filed within 3 years of the agreement. He has also submitted that the said agreement to sell is unregistered. He has also submitted that there is no consistency in the pleadings of the plaintiff. He has also submitted that reliance placed upon the alleged Will is also unregistered one. Mr. Popat, learned advocate for the defendant No.6 has also submitted that revenue entry is yet not certified and it has been rejected by the revenue authority yet no appeal is filed by the plaintiff. According to him, defendant No.6 has purchased the land in question through registered sale-deed and has paid consideration of more than Rs. 1 Crore. He has also submitted that revenue entry has been mutated in the name of the new purchaser. He has also submitted that there was no stay during the entire period i.e. date of filing of the suit till today. He has also submitted that property has not changed any hands since purchased by the defendant No.6. He has also submitted that even if the defendant No.6 has purchased the said land during the course of suit at the most, he would be judgment debtor and since defendant No. 6 is in possession of the property and there is unexplained delay on the part of the plaintiff, no prima-facie case is in favour of the plaintiff and the trial Court has rightly rejected the interim injunction application of the plaintiff. He has prayed

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to dismiss the present appeal.

7. In rejoinder, learned advocate Mr. Karathiya for the plaintiff has submitted that conversion of the land from new tenure to old tenure has occurred in the year 2016 pending the suit and that too on 16.5.2016 and on very next day i.e. on 17.5.2016, sale- deed has been entered into between the original owner and defendant No.6. According to him, in view of the latest decision of he Supreme Court reported in 2020 SCC OnLine 975, now the relief of granting specific performance is not a discretionary relief but in case of agreement to sell, the relief would be specific performance of the contract and, therefore, there is a prima-facie case in favour of the plaintiff.

8. On consideration of the order passed by the learned trial Court, it appears that there was no pleading on behalf of defendant No.6 as he was not joined at the relevant time as a party. The Suit has been filed on 13.12.2013 whereas the impugned order has been passed on 5.4.2016. The trial Court has observed as under:

"Apart from the aforesaid and the subsequent document so executed by the defendants in faour of third party who seems to have been vested with the right over the property in question, and therefore, in absence of such party being impleaded as party defendant, the contentions and the rights thereof claimed by the plaintiff are not sustainable at this juncture, as granting an injunction would amount to jeopardize, rather proved detriment to the right of the third party who seems to have been vested with the right over the property in question by following prescribed procedure i.e. the agreement to sell which appears to have been registered in favour of the said party."

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9. Thus, the trial Court has refused the interim injunction on the basis of the fact that third party is not joined in whose favour registered agreement to sell has been executed. Now, the third party has been joined in the present matter, it is reported that new purchaser has already been joined as party before the trial Court.

10. Thus, in absence of the pleading of the new purchaser, the trial Court has no opportunity of dealing with pleading of the new purchaser while dealing the application for interim injunction. The pleading of the new purchaser needs to be considered by the trial Court.

11. Now, admittedly the trial Court has observed in the order that in absence of third party, if any order is passed granting injunction, it will affect the rights of the third party. It is consensus between the parties that, in the trial Court, at the relevant time, defendant No.6 was not joined.

12. Learned advocate for the appellant has submitted that initially there was an agreement to sell between original owner and defendant No.6 and there was no registered sale-deed at the time of passing of the order.

13. Be that as it may. One thing is clear that the defendant No.6 was not party to the proceedings at the relevant time and in his absence he has not got any right of hearing before the trial Court. Therefore, it is necessary for the end of justice, that without expressing any opinion regarding the contention raised

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by both the sides, the trial Court needs to be directed to hear the injunction application afresh, after affording opportunity of being heard to all the sides. Such exercise be completed by the trial Court within a period of one month from the receipt of copy of this order. Therefore, in view of the above impugned order dated 5.4.2016 passed by learned City Civil Court, Ahmedabad below Exh-7 in Civil Suit No. 3110 of 2013 is hereby set-aside.

14. The trial Court is hereby directed to decide the same afresh after affording opportunity of being heard to plaintiff's side and defendant's side. The trial Court shall complete the hearing and take decision thereof within a period of one month from the date of receipt of copy of this Order. Learned advocates for both the sides are directed to cooperate with the trial Court for adjudication of Exh-5 application in time bound manner.

No order as to costs. Direct service is permitted.

Civil Application, if any, stands disposed of accordingly.

The trial Court be informed accordingly.

(DR. A. P. THAKER, J) SAJ GEORGE