Rekhaben Wd/O Pravinbhai ... vs Patel Baldevbhai Amrutlal
2023 Latest Caselaw 4046 Guj

      C/CRA/209/2017                              JUDGMENT DATED: 05/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CIVIL REVISION APPLICATION NO. 209 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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1     Whether Reporters of Local Papers may be allowed to                 YES
      see the judgment ?

2     To be referred to the Reporter or not ?                             YES

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

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


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        REKHABEN WD/O PRAVINBHAI AMRITLAL PATEL & 2 other(s)
                             Versus
                  PATEL BALDEVBHAI AMRUTLAL
==========================================================
Appearance:
MR ANUJ K TRIVEDI(6251) for the Applicant(s) No. 2
MR.D K.PUJ(3836) for the Applicant(s) No. 1,3
VMP LEGAL(7210) for the Opponent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 05/06/2023

                             ORAL JUDGMENT

[1] The present Civil Revision Application under Section 115 of

the Code of Civil Procedure, 1908 (for short, "the Code") is directed

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against the order dated 4th May 2017 passed by the learned

Principal Civil Judge, Bavla below Exhibit : 57 under Order VII Rule

11 of the Code in Regular Civil Suit No.159 of 2006, whereby the

learned Judge has rejected the application preferred by the

applicants herein - original defendants.

[2] The brief facts of the case can be stated as under:

[2.1] The respondent herein - original plaintiff has instituted

Regular Civil Suit No.159 of 2006 in the Court of learned Principal

Civil Judge, Dholka for permanent injunction against the applicants

herein - original defendants for the following reliefs:

"(9) We, the plaintiff, hereby prays through this claim that :

(A) The defendants themselves or through their men, servants, agents, relatives, associates in this case shall not forcibly and illegally remove us the plaintiff from the peaceful and direct possession of the suit property, i.e. the agricultural land admeasuring 4-19-86 Hectares (approx. 18 Bighas) bearing Survey No.30 situated at the outskirts of Village Mouje Kerala, Taluka Bavla, District Ahmedabad i.e. the said farm. Also they will not create any kind of movement, hindrance, detention, or interference over the field when we the plaintiff plows the field, sows its produce and takes its crops and not to make any illegal encroachment over the

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claimant's farm. Also grant permanent injunction against the defendants of this case.

(B) Order all costs of this suit from the defendants.

(C) Grant such other relief as the Hon'ble Court may think fit and just."

[2.2] The applicants herein - original defendants having served

with the notice of the suit, preferred an application Exhibit : 57

under the provisions of Order VII Rule 11(d) of the Code on 20 th

April 2007.

[2.3] At this stage, it is also important to note that in the said suit,

the learned Trial Court, vide its order dated 21 st May 2008 passed

below Exhibit : 5, granted status quo in favour of the plaintiff

holding, inter alia, that the plaintiff is in possession of the land in

question pursuant to the agreement to sale.

Being aggrieved by the aforesaid, the applicants herein -

original defendants have approached the Appellate Court by way of

Civil Miscellaneous Application No.79 of 2008, however, the said

appeal came to be rejected by the learned 7 th Additional District

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Judge, Ahmedabad (Rural) at Mirzapur vide its order dated 10 th

December 2013. Thus, the applicants herein have approached this

Court by way of Special Civil Application No.213 of 2014, which

also came to be dismissed vide order dated 30th March 2017. This

Court, while dismissing the petition, directed the Trial Curt to

complete the hearing of the suit within a period of six months.

[2.4] Thereafter, it appears that the learned Principal Civil Judge,

Bavla, vide its order dated 4th May 2017, rejected the application of

the applicants herein under Order VII Rule 11 of the Code.

[3] Being aggrieved and dissatisfied by the aforesaid, the

applicants herein - original defendants have approached this Court

by way of present Civil Revision Application for the reliefs prayed

therein.

[4] At the first instance, this Court, vide its order dated 9 th May

2017, was pleased to issue notice making it returnable on 7 th June

2017 with no interim relief whatsoever in nature, however, till the

next date, the applicants herein were permitted to apply for the

adjournment before the learned Trial Court. Thereafter, it appears

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from the ordersheet that time and again, the matter was adjourned

on one or the other grounds without extension of arrangement

made vide order dated 9th May 2017.

[5] Today, when this matter was called out, at that time, it was

pointed out by the learned advocate that the trial has already

proceeded further and the evidence of plaintiff is over. As the Civil

Revision Application is awaiting admission since 2017 and keeping

in mind that the suit is of the year 2006, both the learned

advocates have jointly requested this Court to decide the matter

finally at the admission stage.

[6] In view of the aforesaid request, issue Rule returnable

forthwith. Learned advocate Mr. Vimal Patel appearing with

learned advocate Mr. Hitesh V. Patel waives service of notice of

Rule for the respondent.

[7] I have heard learned advocate Mr. Dhanvin Puj for the

applicants herein - original defendants and learned advocate Mr.

Vimal Patel for the respondent and have also gone through the

material produced on record in detail.

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[8]      Learned advocate Mr. Puj for the applicants herein has

submitted that the impugned order passed by the learned Principal

Civil Judge is contrary to law and evidence on record and thereby,

deserves to be quashed and set aside. Mr. Puj further submitted

that learned Trial Court has completely misconstrued the provisions

of Order VII Rule 11 of the Code and that has resulted into serious

miscarriage of justice. Mr. Puj also submitted that the suit has been

preferred by the original plaintiff for perpetual injunction on the

basis of possession pursuant to agreement to sale dated 10 th March

2002, however, in the plaint, there is no prayer with regard to

specific performance of the agreement to sale and only perpetual

injunction has been sought for and therefore, the suit for perpetual

injunction simpliciter is not maintainable. Mr. Puj, relying upon

Section 41(h) of the Specific Reliefs Act, 1963, submitted that

injunction cannot be granted when equally efficacious relief can be

obtained by any other usual mode of proceeding. According to Mr.

Puj, the plaintiff could have instituted suit for specific performance

of agreement to sale, however, admittedly, no such prayer for

performance has been sought for in the suit in question and

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thereby, in absence of any such prayer, the suit is hit by Section

41(h) of the Specific Reliefs Act, and thereby, the same is not

maintainable.

[9] By making above submissions, Mr. Puj, learned advocate for

the applicants - original defendants has prayed this Court to allow

the present Civil Revision Application as prayed for.

[10] Per contra, learned advocate Mr. Vimal Patel with learned

advocate Mr. Hitesh V. Patel for the respondent has vehemently

opposed the present Civil Revision Application contending, inter

alia, that the order passed by the learned Trial Court is perfectly

justified and being passed in sound principles of Order VII Rule 11

of the Code.

[11] Mr. Patel submitted that as such the original plaintiff is in

possession of the suit property pursuant to the agreement to sale

dated 10th March 2002 and since then, the plaintiff is in possession.

Mr. Patel further submitted that the said agreement to sale is

executed coupled with handing over of the possession and thereby,

the applicant herein is in lawful possession of the land in question

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within the meaning of Section 53A of the Transfer of Property Act.

According to Mr. Patel, therefore, the suit for simipliciter injunction

cannot be said to be not maintainable in absence of any other

connected relief. Mr. Patel submitted that even the Trial Court,

while deciding the application below Exhibit : 5, in no unequivocal

term, held that the plaintiff is in possession of the land in question

pursuant to agreement to sale and the said findings and

observations came to be confirmed by this Court. Mr. Patel,

therefore, submitted that the suit thereby cannot be thrown away

at the threshold holding the same being not maintainable merely

relief prayed therein is simpliciter for permanent injunction.

[12] By making above submissions, Mr. Patel, learned advocate for

the respondent requested this Court to reject the present Civil

Revision Application.

[13] I have heard the learned advocates for the respective parties

and have gone through the material produced on record in detail.

No other and further submissions have been canvassed by the

learned advocates appearing for the respective parties except what

are stated hereinabove.

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[14] Having heard the submissions of the learned advocates, the

moot question that falls for the consideration of this Court is

whether the suit simpliciter for permanent injunction without

claiming any other relief filed by the plaintiff can be rejected at the

stage of Order VII Rule 11(d) of the Code holding, inter alia, that

the suit is not maintainable?

[15] So as to decide the aforesaid question, it would be apt to take

notice of the legal enunciation exposed by the Hon'ble Apex Court

in the matter of the suit simpliciter for permanent injunction

without claiming any other relief. In the said context, it is profitable

to take into consideration the recent decision of the Hon'ble Apex

Court in the case of Sri Biswanath Bank and another vs. Sulanga

Bose and others reported in (2022) 7 SCC 731. The relevant

observations made by the Hon'ble Apex Court in para 10 read thus:

"9. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the

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plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act.

10. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially.

11. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC."

[16] Yet in another decision in the case of T. V. Ramakrishna

Reddy vs. M. Mallappa and others reported in AIR 2021 SC 4293,

the Hon'ble Apex Court has held in paras 9 and 10 as under:

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"9. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others (2008) 4 SCC 594 in paragraph 21, which read thus:

"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

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(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its

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discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction."

[17] In the case of Jharkhand State Housing Board vs. Didar Singh

and another reported in (2019) 17 SCC 692, the Hon'ble Apex

Court has held in paras 10 and 11 as under:

"10. The issue that fall for our consideration is: "Whether the suit for permanent injunction is maintainable when the defendant disputes the title of the plaintiff?"

11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over

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the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."

[18] Yet in anther decision in the case of Lakshmi alias

Bhagyalakshmi and another vs. E. Jayaram reported in (2013) 9

SCC 311, the Hon'ble Apex Court has also discussed the scope of

suit for permanent injunction vis-a-vis the provisions of Section 53A

of the Transfer of Property Act. The relevant observations made by

the Hon'ble Apex Court in paras 5, 6 and 7 read thus:

"5. The learned Additional City Civil Judge on consideration of the pleadings made by the parties and the documents filed by them allowed the application of the plaintiffs under Order 39 Rule 1 and 2 CPC and granted ad-interim temporary injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property by Plaintiff No.2 till disposal of the suit. While granting temporary injunction the Civil Judge recorded the following reasons :-

"From the allegations and counter allegations, it can be crystallized that plaintiff no.2 is in possession of suit schedule property and as such, the documents have been produced and even defendants admit the possession of plaintiff no.2. As regards the sale deed which is alleged to have been executed the same is seriously disputed document. Hence it need not be considered at this stage.

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The respective rights of the parties will have to be decided at the final disposal of the suit. At this stage, it is suffice to state that plaintiff no.2 is in possession of the property who has filed an affidavit stating that she is a tenant under plaintiff no.1 where as defendants have produced documents to show that she is tenant under them.

In view of the above, I am of the considered opinion that this controversy can be resolved at the final disposal of the suit when parties lead their respective evidence. At this stage, plaintiff no.2 is entitled for injunction. Hence the point for consideration is answered in favour of plaintiff no.2 only and I proceed to pass the following:

I.A. No.1 filed by the plaintiffs under Order 39 Rule 1 and 2 of CPC is allowed in part. Defendants 1 and 2 are restrained by an order of ad-interim temporary injunction from interfering with the peaceful possession and enjoyment of the suit schedule property by plaintiff no.2 till disposal of the suit."

6. Aggrieved by the said order the defendants preferred an appeal before the High Court being MFA No.524 of 2003. Ld. Single Judge instead of considering the legality and propriety of the interim injunction granted by the Civil Judge proceeded to decide the effect of Section 53A of the Transfer of Property Act, 1882.

The Ld. Single Judge is of the view that though the plaintiff is ready and willing to perform her part of the contract, the fact that

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suit for bare injunction is filed without seeking leave under Order 2 Rule 2 CPC reserving their right to sue for any other relief. According to Ld. Single Judge in the light of this, if the respondent is barred from claiming any relief of specific performance, the incidental relief of injunction would be unavailable to the respondents.

7. We have heard learned counsel appearing for the parties. In our considered opinion, the learned single judge has completely misconstrued the provisions of Order 39 Rule 1 and 2 CPC and has committed serious error in deciding the scope of Section 53A of Transfer of Property Act, 1882 and Order 2 Rule 2 of CPC. As noticed above the Civil Judge while granting ad-interim injunction very categorically observed in the order that respective rights of the parties shall be decided at the time of final disposal of the suit. The very fact that Plaintiff No.2 is in possession of the property as a tenant under Plaintiff No.1 and possession of Plaintiff No.2 was not denied, the interim protection was given to Plaintiff No.2 against the threatened action of the defendants to evict her without following the due process of law. In our considered opinion, the order passed by the learned single judge cannot be sustained in law."

[19] Considering the aforesaid settled proposition of law, the

Hon'ble Apex Court has clearly laid down law that when there is an

interference with the lawful possession or threats of dispossession,

the suit for injunction simpliciter is maintainable.

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[20] Keeping in mind the aforesaid proposition of law, if the facts

of the present case are considered, then it would indisputably

appear that the plaintiff is in possession of the land in question

pursuant to the agreement to sale since the date of execution of the

agreement to sale. It is pertinent to note that that pursuant to the

said agreement, even in the record of rights, in the column of

"panipatra", name of the plaintiff is mutated, which is suggestive of

the fact that the plaintiff is cultivating the land in question. The

Revenue entry to that effect is also mutated in the record of rights

and the said entry is duly certified by the revenue authority.. The

possession of the plaintiff is also prima facie believed by the Trial

Court as well as by the High Court while deciding the application

below Exhibit : 5 under Order 39 Rule 1 and 2 of the Code.

[21] In view of the aforesaid facts, in my considered opinion,

when the plaintiff is believed to be in possession by virtue of an

agreement to sale and thereby, falls within the scope and ambit of

Section 53A of the Transfer of Property Act. For the sake of

convenience, Section 53A of the Transfer of Property Act is

reproduced hereinbelow:

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"53A. Part performance.--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

[22] The aforesaid provision is relating to part performance,

simple meaning thereof is that if any person acquires immovable

property by virtue of any contracts for consideration as a part

performance can be said to be in possession in part performance of

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the contract.

[23] Now, if the provision of Section 53A of the Transfer of

Property Act is kept in mind, in my view, the plaintiff has been put

into possession pursuant to the agreement to sale and thereby, the

possession held by the plaintiff can be said to be within the ambit

and scope of Section 53A of the Transfer of Property Act and thus,

possession of the plaintiff can be said to be "lawful". Hence, once

the possession is lawful, in that event, as per the law settled by the

Hon'ble Apex Court, the suit for injunction simpliciter is

maintainable and accordingly, in my considered opinion, cannot be

thrown away at the threshold in exercise of powers under the

provisions of Order VII Rule 11(d) of the Code.

[24] So far as the contention raised by the learned advocate for

the applicants herein - original defendants with regard to Section

41(h) of the Specific Reliefs Act is concerned, in my considered

opinion, when the suit for injunction simpliciter is held to be

maintainable, the provisions of Section 41(h) would not be

applicable. In other words, contention sought to be canvassed by

the applicants herein is misconceived and being misconception of

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law. I say so because the prayer of the Specific Reliefs Act cannot

be said to be an alternative to the prayer of injunction, in the facts

of the present case, the suit for injunction itself is capable of being

maintainable independently. Even otherwise, the maintainability

and entertainability of the suit is a different aspect, whether prayer

can be granted or not in view of Section 41(h) of the Specific

Reliefs Act is a matter of trial and thereby, same cannot be

considered at this stage while deciding an application under Order

VII Rule 11 of the C.P.C. The contention with regard to Section

41(h) of the Specific Reliefs Act, in my view, is said to be the

defense available to the original defendants opposing against

granting of prayer of the suit. Therefore, the same can be decided

by the Trial Court in the trial after considering the evidence

brought on record.

[25] I answer the question accordingly.

[26] In view of the aforesaid, the present Civil Revision

Application is bereft of any merits and the order dated 4th May

2017 passed by the learned Principal Civil Judge, Bavla below

Exhibit : 57 under Order VII Rule 11 of the Code in Regular Civil

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Suit No.159 of 2006 cannot be said to be illegal.

[27] Resultantly, the present Civil Revision Application is

dismissed with no order as to costs. Notice stands discharged.

Interim relief, if any, stands vacated forthwith.

(NIRAL R. MEHTA,J) CHANDRESH