Khushmanbhai Maganbhai Patel vs Kusumben Wd/O Jerambhai ...
2023 Latest Caselaw 2655 Guj

     C/SCA/3407/2023                                  CAV JUDGMENT DATED: 31/03/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 3407 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

==========================================================

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

2       To be referred to the Reporter or not ?

3       Whether their Lordships wish to see the fair copy
        of the judgment ?

4       Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== KHUSHMANBHAI MAGANBHAI PATEL Versus KUSUMBEN WD/O JERAMBHAI MAGANBHAI PATEL ========================================================== Appearance:

SAGAR J SHAH(9447) for the Petitioner(s) No. 1,2 for the Respondent(s) No. 10,10.1,10.2,10.3,10.4,3,4,5,6,7,8,9 MR MANAN A SHAH(5412) for the Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 31/03/2023

CAV JUDGMENT

1. Rule. Learned advocate Mr.Manan Shah waives

service of notice of rule for respondents.

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2. The present petition is filed with the following

prayers:

"7(a) Your Lordships may be pleased to issue a writ

of certiorari and/or any other appropriate writ order

or direction in the nature of certiorari, quashing and

setting aside the impugned order below Exh.33, dated

21.11.2022 in Misc.Civil Appeal No.5 of 2018 passed

by the 12 th Addl.District Judge, Surat Annex.A Colly.

(b) Pending admission, hearing and final disposal of

the present petition, Your Lordships may be pleased

to stay the implementation, execution and operation

of the impugned order below Exh.33, dated

21.11.2022 in Misc.Civil Appeal No.5 of 2018

Annex.A Colly.

(c) xxxx"

3. The brief facts leading to filing of this petition are

as under:

3.1 It is the case of the petitioners that the land

bearing survey no.225/2, block no.196, village Kumbhariya,

Dist.Surat (hereinafter referred to as `the suit property') was

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originally owned by Maganbhai Prabhubhai Patel, who died

intestate on 24.10.1993, who had three sons and four

daughters.

3.2 It is the say of the petitioners that in view of

family settlement and arrangement at the relevant point of

time, the suit land came to the share of the present

petitioners-original defendant nos.1 and 2 and the procedure

of heirship was carried out and the names of other heirs

were deleted and they are possessing the suit property as

absolute owners since 2001.

3.3 It is the say of the petitioners that after almost

16 years, the respondent nos.1 and 2- original plaintiffs

preferred civil suit claiming share and partition of the suit

property. It is submitted injunction application Exh.5 was

preferred along with the suit being Regular Civil Suit No.347

of 2016, which came to be rejected vide order dated 6.1.2018

by 9 th Additional Senior Civil Judge, Surat.

3.4 Being aggrieved and dissatisfied with the said

order of rejection, respondent nos.1 and 2-original plaintiffs

preferred Misc.Civil Appeal No.5 of 2018, which was allowed

by the 12 th Additional District Judge, Surat, vide order dated

21.11.2022 below Exh.33.

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3.5 It is against this order, the present petition is

filed by the original defendant nos.1 and 2.

4. Heard learned advocate Mr.Amit Thakkar

appearing with learned advocate Mr.Sagar J Shah for the

petitioners and learned senior advocate Mr.Dhaval Dave

appearing with learned advocate Mr.Manan Shah for the

respondents.

4.1 Learned advocate Mr.Amit Thakkar submitted that

the learned trial Court has considered the case for the

purpose of injunction application below Exh.5 in an

appropriate manner and has rejected the application for

interim injunction filed by the plaintiff vide order dated

6.1.2018. The learned lower appellate Court, while considering

the Misc.Civil Appeal No.5 of 2018, has considered the same

after almost delay of four years and vide order dated

21.11.2022 application at Exh.5 filed in Regular Civil Suit

No.347 of 2016 is allowed and the defendant no.1 is

restrained from creating any interest/title of any third party

and restrained from alienating the suit property in any

manner during the pendency of the present suit. He has

submitted that this order is passed almost at the fag end of

the trial when the trial is already proceeded and evidence is

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already recorded of the parties.

4.2 He has submitted that the learned lower appellate

court has erred in exercising powers under Order 43 Rule 1

of Civil Procedure Code `CPC' for short) at this belated stage

and not properly considered the facts and circumstances of

the present case; that the learned lower appellate court has

erred in presuming that the plaintiffs are co-sharers and on

that basis erred in holding that co-sharer always remained in

possession of the joint land as representative of other co-

sharers, there is no ouster of the possession of any co-sharer

from any joint land and there is always deemed possession of

the co-sharer upon the joint land until and unless it is

partitioned, though it may be actual physical possession of

one of the co-sharer and therefore there is no question of

limitation; that the learned lower appellate Court has not

properly considered the vital document which is on record

which clearly states that by virtue of family arrangement and

settlement, the suit land came to the share of the present

petitioners and that the other heirs had consented and

agreed for the same by execution of an agreement for

deleting their names from the revenue record and admitted

that the land has gone into the share of Khushmanbhai,

further more, the same was also given effect in the revenue

record also; that the lower appellate Court has erred in

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holding that registration would be required for the agreement

dated 22.3.2000; that in case of family arrangement,

registration is not mandatory and therefore on the ground

that the document is not registered, the impugned order is

very erroneous and required to be quashed and set aside.

4.3 He has further submitted that the learned lower

appellate Court also ought to have considered that in view of

the family arrangement and settlement, after the death of

Maganbhai, heirship procedure was done and by mutation

entry 1612 dated 29.2.2000 the names of the heirs were

mutated by entry no.1738 dated 24.10.2001 the names of all

other heirs except the petitioners were deleted. Not only that,

in the said procedure Section 135-D notices were also served

and the statements were also recorded and all the heirs

including the plaintiffs have even put their signatures

consenting the same and the land was also mutated only in

the name of the defendant no.1-petitioner no.1 herein who

continued to use and cultivate the said land as owner and

no objection was raised for more than 16 years; therefore the

rights of the parties were settled long back and further other

heirs have not raised any dispute.

4.4 He has further submitted that the plaintiffs had

appeared before the Talati-cum-Mantri and had given

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statements and signed their agreements and only due to

increase in price of the suit property, it appears that the

suit came to be filed and therefore he has submitted that

the learned lower appellate Court has committed gross error

in not considering the above mentioned aspect.

4.5 In support of his submissions, learned advocate

Mr.Thakkar has relied on the following judgments:

(1) Veetrag Holding Co.Ltd. V/s Gujarat State Textile

Corporation Ltd., reported in 1996(3) GLR 536, paragraph

no.8 therein and submitted that laches and undue delay, the

blameworthy conduct of a person in approaching a Court of

equity of England for obtaining discretionary relief which

disentitled him for grant of such relief.

"8. Even so, in any case, inasmuch as this contract was terminated on 6th December 1993, it was expected of the appellant to move for specific performance at the earliest, if they were serious about the same. The appellants certainly cannot be non-suited on the ground of limitation inasmuch as their suit is within time. However, when it comes to grant of equitable relief when the suit is filed after such a lapse of time, it cannot be said that the remedy of interim injunction was the necessary remedy and there was no other remedy available to the party concerned in this behalf. Shri Gupta relied upon the Apex Court judgment rendered in Dalpat Kumar and Anr. V/s. Prahlad Singh and Ors.,

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AIR 1993 SC 276. In paragraph 5 thereof the Courts are cautioned and required to exercise sound judicial discretion. They are required to find out that no other remedy is available to the party concerned and then as stated by the Honourable Supreme Court (and again relied upon by Shri Gupta) in para 20 of the judgment of the Apex Court rendered in State of Maharashtra V/ s. Digambar, (1995) 4 SCC 683; for approaching a court of equity, the blameworthy conduct of a person approaching a court of equity, for obtaining discretionary relief disentitles him for grant of such relief. Para 20 of the above judgment reads as under :

"Laches or undue delay, the blameworthy conduct of a person in approaching a court of equity in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. V/s. Hurd thus :

"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is funded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable.

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Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."

(2) Thulasidhara and another V/s Narayanappa and Others,

reported in (2019)6 SCC 409, more particularly, paragraph

9.3 and 9.4 and submitted that the equitable principles such

as estoppel, election, family settlement, etc. are not mere

technical rules of evidence. They have an important purpose

to serve in the administration of justice and ultimate aim of

the law is to secure justice.

"9.3 Now so far as the finding recorded by the High Court that as the Partition Deed dated 23.04.1971 (Exhibit D4) was unregistered though required registration under the Provisions of the Registration Act and therefore the same is not admissible in evidence is concerned, it is required to be noted that as such Exhibit D4 can be said to be a Palupatti as has been described as Palupatti. Palupatti means list of properties partitioned. At the most, it can be said to be a family arrangement. Therefore, in the facts and circumstances of the case, the same was not required to be registered.

9.4It is required to be noted that the deed dated 23.04.1971,

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under which the suit property had gone /devolved in favour of the Krishnappa, was reduced in writing before the Panchayat and Panchas, and the same was signed by the village people/panchayat people and all the members of the family including even the plaintiff. Though the plaintiff disputed that the partition was not reduced in writing in the form of document Exhibit D4, on considering the entire evidence on record and even the deposition of plaintiff (cross-examination), he has specifically admitted that the oral partition had taken place in the year 1971. He has also admitted that he has got the share which tellies with the document dated 23.04.1971 (Exhibit D4). Execution of the document/ Partition Deed/ Palupatta dated 23.04.1971 has been established and proved by examining different witnesses. The High Court has refused to look into the said document and/or consider document dated 23.04.1971 (Exhibit D4) solely on the ground that it requires registration and therefore as it is unregistered, the same cannot be looked into. However, as observed by this Court in the case of Kale (Supra) that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in the case of S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 in which it was observed as under:

"13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence.

They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to

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secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.

* * *

22. As observed by this Court in T.V.R. Subbu Chetty's Family Charities case, that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open."

4.6 He, therefore, submitted that the petition is

required to be allowed by quashing and setting aside the

impugned order passed by the learned lower appellate Court

whereby the powers under Order 43 Rule 1 of CPC are

wrongly exercised by the learned lower appellate Court at a

belated stage.

5. Per contra, learned advocate Mr.Dhaval Dave

appearing for the respondents submitted that the impugned

order passed by the learned lower appellate Court is just and

proper and no interference is called for by this Court by

relying on various judgments. He has further submitted that

in fact, the document which is relied on by the present

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petitioner is relinquishment deed and is not a family

arrangement which is required to be compulsorily registered

under the provisions of Section 17 and 49 of the Registration

Act.

"Sec.17 Documents of which registration is compulsory.-- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of

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one hundred rupees and upwards, to or in immovable property:

Provided that the 2 [State Government] may, by order published in the 3 [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to--

(i) any composition deed; or

(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or 1. Ins. by Act 21 of 1929, s. 10. 2. Subs. by the A.O. 1950, for "Provincial Government". 3. Subs. by the A.O. 1937, for "Local Official

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Gazette". 4. Ins. by Act 48 of 2001, s. 3 (w.e.f. 24-9-2001). 8

(iv) any endorsement upon or transfer of any debenture issued by any such Company; or

(v) 1 [any document other than the documents specified in sub- section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court 2 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or

(vii) any grant of immovable property by 3 [Government]; or

(viii) any instrument of partition made by a Revenue-Officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or (xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

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(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. 5 Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.

Sec.49 Effect of non-registration of documents required to be registered.--No document required by section 17 1 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 2 , 3 *** or as evidence of any collateral transaction not required to be effected by registered instrument."

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5.1 Learned senior advocate Mr.Dhaval Dave has

relied on the following decisions:

(1) In the case of Yellapu Uma Maheswari and Another V/s

Buddha Jagadheeswara Rao and Others, reported in (2015)16 SCC 787, more particularly, on paragraphs 13 and 15 and

submitted that the document which in fact is of the nature

of relinquishment of the right of the other heirs must be

registered and therefore also the petitioners are not entitled

to get any relief as prayed for the in the present petition.

"13. Section 17 (1) (b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered u/s 17 of the Act.

15.It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable

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document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17 (i)

(b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition."

(2) In the case of Korukonda Chalapathi Rao and Another V/

s Korukonda Annapurna Sampath Kumar, reported in 2021 SCC online SC 847, more particularly, paragraphs 15 and 16

and submitted that when it is a family settlement then it

may not require registration but in the present case, it is

clearly established fact that it is relinquishment deed which

is required to be registered.

"15. There is a long line of judgments of this court dealing with the question as to whether a family arrangement is compulsorily registrable. We need only refer to the case of Kale v. Dy. Director of Consolidation, AIR 1976 SC 807. This Court has summed up the essentials of the family settlement in the following proposition:

"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the

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matter may be reduced into the form of the following propositions:

"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or

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titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement." (Emphasis supplied)

16. In the facts of this case, the contention of the appellants is that the Kharurunama dated 15.04.1986 merely sets out the arrangement arrived at between the brothers which is the family arrangement and it was a mere record of the past transaction and therefore by itself it did not create or extinguish any right over immovable property. Resultantly, the document did not attract Section 17(1)(b) of the Registration Act. In other words, it is contended that even if there is relinquishment of rights by the family member, since the document is only a record of what had already happened in the past, the law did not mandate registration."

(3) In the case of Mohd.Yunus V/s Mohd.Mustaqim and

Others reported in (1983)4 SCC 566, more particularly,

paragraphs 5 and 7 and has submitted that the supervisory

jurisdiction under Article 227 of the Constitution of India is

limited "to seeing that an inferior court or tribunal functions

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within the limits of its authority", and not to correct an

error apparent on the face of the record, much less an error

of law.

"5. We fail to see the propriety of the petition moved by the petitioner in the High Court under Art. 227 of the Constitution. The rule is well-established that there can be no certification of an adjustment between the decree-holder and the judgment- debtor under O. 21, rule 2 after an auction-sale is held in a case where a third party's interest intervenes. In such a case, the Court has no alternative but to confirm the sale under O. 21, rule 92 of the Code, In Nanhelal V/s. Umrao Singh, 58 Ind App 50 the Judicial Committee of the Privy Council in dealing with O. 21, rule 2 of the Code held at an adjustment between the decree-holder and the judgment-debtor come to at any time before the confirmation of an execution sale cannot nullify the decree by taking away the very foundation of the Court's power to execute the decree viz. the existence of a decree capable of execution. In dealing with the question the Privy Council observed :-

"In the first place, O. 21. Rule 2, which provides for certification of an adjustment come to out of Court clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, and when no other interests have come into being. When once a sale has been effected a third party's interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment-

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debtor can get rid of a sale which has been duly carried out are those embodies in Rule 89 viz. by depositing in Court the amount for the recovery at which the property was sold together with 5 per cent on the purchase money which goes to the purchaser as statutory compensation, and this remedy can only be pursued within 30 days of the sale sec Art. 166 Sch. 1 Lim. Act, 1908."

The Privy Council further observed :-

"That this is so is clear from the wording of R. 92, which provides that in such a case (i.e. where the sale has been duly carried out). If no application is made under R. 89, the Court shall make an order confirming the sale and thereupon the sale shall become absolute."

7. The supervisory Jurisdiction conferred on the High Courts under Art. 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which

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the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision."

(4) In the case of Dev Prakash and Another V/s Indra and

Others, reported in (2018) 14 SCC 292 and in the case of Maharwal Khewaji Trust (Regd.) Faridkot V/s Baldev Dass, reported in (2004)8 SCC 488 and submitted that the Court

cane exercise discretion under Order 43 Rule 1(r) and Order

39 Rules 1 and 2, where there is possibility of immeasurable

prejudice to the other side or to render situation irreversible.

"10. Be that as it may, Mr Sachar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of the property by putting up construction as also by permitting the alienation of the property, whatever may be the conditions on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is

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always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."

(5) In the case of Garment Craft V/s Prakash Chand Goel

reported in (2022) 4 SCC 181, whereby the Apex Court has

said that supervisory jurisdiction of High Court when to be

exercised and he has relied more particularly relied on

paragraphs 15, 16 and 17 and has submitted that the

judgment and order passed by the learned trial Court is

within the powers available under Order 43 Rule 1(r) and no

perversity or illegality is committed by the learned trial

Court and therefore no interference is warranted for by this

Court.

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court

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of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 1 Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16.Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner.

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The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

17.The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the

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record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

5.2 Learned senior advocate Mr.Dave further submitted

that merely the trial is at the fag end does not give any

right to the petitioners to contend that no injunction should

be granted, more particularly, when the contesting

respondents are co-owners of the property and they have filed

criminal proceedings against the petitioners also for the suit

land. He, therefore, submitted that the present petition be

dismissed as is found meritless.

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6. I have considered rival submissions, perused the

impugned judgment and order of the lower appellate Court

and leaned trial Court and am of the opinion that that the

lower appellate Court and learned trial Court has considered

factual aspects in correct perspective.

7. It is necessary to note that word `family

arrangement' is not statutorily defined. It is also necessary to

discuss the word `relinquishment' in the facts of the present

case. For that purpose, at this stage, it is fruitful to refer to

some judgments of the Apex Court which are as follows:

(i) (1987) 3 SCC 294 - Thamma Venkata Subbamma

versus Thamma Rattamma - paragraphs 20 and 21 thereof :

"20. Coming back to the facts of the case, we find that Rami Reddy made the gift for the common benefit of the donee as well as his sons as held by the High Court. It is submitted on behalf of the respondents that really it is a case of renunciation or relinquishment by Rami Reddy of his interest in favour of his brother and his sons. It was the intention of the donor that the property might be enjoyed by his brother and his sons and, excepting that the donor had reserved to himself a life interest, presumably for his maintenance, he gifted his entire interest in the coparcenary property to his brother. There is some force in the contention of the learned Counsel for the respondents that

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the gift should be construed as relinquishment or renunciation of his undivided interest by the donor in favour of the other coparceners. Although the gift is ostensibly in favour of Veera Reddy, but really the donor meant, to relinquish his interest in the coparcenary in favour of Veera Reddy and his sons. In this connection, we may refer to the following passage from Mulla's Hindu Law, Fifteenth Edition, Art. 264 at page 357 : -

"Art. 264. (1) Renunciation or relinquishment of his share. A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The renunciation or relinquishment must, of course, be genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed.

21. Assuming that it is a renunciation in favour of one of the coparceners, namely, Veera Reddy, such renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener in whose favour the renunciation was made. In our view, the gift made by Rami Reddy to Veera Reddy should be construed as renunciation of his undivided

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interest in the coparcenary in favour of Veera Reddy and his sons who were the remaining coparceners. The gift was, therefore, valid construing the same as renunciation or relinquishment by Rami Reddy of his interest in the coparcenary and, accordingly, the consent of other coparceners was immaterial."

(ii) (2016) 8 SCC 705 - Subraya M.N. versus vittala M.N. -

paragraphs 15, 16 and 17 thereof :

"15. Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property. As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved under Section 91 of the Evidence Act.

16. Even though recitals in the Ex.D22 is to the effect of relinquishment of right in items No.1 and 2, Ex.D22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with

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immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex.D22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in items No.1 and 2.

17. The Plaintiffs have denied the contention of the defendant that plaintiffs No.3 and 4 have received consideration from the defendant in lieu of relinquishing their claim for items No.1 and 2 of the suit scheduled property. Contention of the plaintiffs is that all the brothers have cultivated the suit property and have contributed towards the development of the land belonging to their family and also contributed for the construction of the house in item No.2 of the suit property. Plaintiff No. 3 had produced Ex.P8 to P-29-M.O. receipts and acknowledgment cards showing that the defendant received the amount sent under the money order in the name of the defendant."

8. Now, considering the Black's Law Dictionary, the

meaning of word `family arrangement' is given as under:

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'family arrangement' means :- an informal agreement

among family members, usu. To distribute property in a

manner other than what the law provides for.

'relinquishment' means :- the abandonment of a right of

thing.

9. Now the only thing which is required to be seen

is that whether the deed involved in this litigation is

relinquishment deed or family arrangement, which can be

proved after the completion of trial by leading cogent and

convincing evidence by the parties. Prima facie, it transpires

that the parties have entered into some arrangement by

which the other co-sharers of the properties have executed

the writing whereby they have relinquished or waived their

rights in the suit property. Pursuant to the said writing,

thereafter the entry proceedings was initiated, notice under

Section 135D of the Land Revenue Code is also served on

the respective parties, and the entry is also mutated in the

revenue record being mutation entry no.1612 dated 29.2.2000

and entry no.1738 dated 24.10.2001. But, however it

transpires from the order passed by the learned trial Court

that it has considered the fact that defendant no.1 and 2-the

present petitioners herein are owners of the suit property

from 2000 and the suit is filed somewhere in the year 2016

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and therefore, the injunction was not granted by the learned

trial Court, whereas, the learned lower appellate Court in

this background has found that the deed in question is

relinquishment deed dated 22.3.2000 which is not registered

but is required to be registered under the provisions of

Sections 17 and 19 of the Registration Act. The learned

lower appellate Court has also found that the present

petitioners who are defendant nos.1 and 2 are the

representatives of other co-sharers and there is no ouster of

the possession of any co-shares from any joint property and

therefore the learned lower appellate Court had thought it fit

to reverse the order of the learned trial Court and has

passed the injunction order by granting interim injunction by

allowing application Exh.5.

10. In view of the above findings, I am of the opinion

that prima facie the approach of the lower appellate Court is

not supported by the facts of the present case and position of

law and therefore, the learned lower appellate Court has

erred in believing that the document is relinquish deed

without waiting for full fledged trial by which nature of deed

as well as rights of parties can be proved by leading proper

and convincing evidence whether the deed in question is

relinquishment deed or family arrangement and required to

be registered or not? can be established.

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11. In the facts and circumstances of the present case.

After taking into consideration the facts of prima facie case,

balance of convenience and hardship and more particularly,

the revenue entry is made in favour of the present

petitioners as the petitioners are in possession of suit land

from the year 2000 till the suit is filed in the year 2016,

such a long possession cannot be disturbed or snatched away

by granting interim injunction without full fledged trial and

the dispute about rights of the parties in suit property are

yet to be adjudicated finally by leading cogent and proper

evidence, I am of the opinion that the ends of justice would

be met and the rights of both the parties would be protected

if the impugned judgment and order is modified by directing

the present petitioners to seek prior permission of the

learned trial Court if the petitioners want to enter into any

transaction by way of sale or transfer or alienate to the

third party or create any third party right, by replacing the

direction in the order granted by the learned lower appellate

Court which is impugned in the present petition.

12. In view of the above discussion, by modifying the

impugned order, this petition is disposed of. The impugned

order below Exh.33, dated 21.11.2022 in Misc.Civil Appeal

No.5 of 2018 passed by the 12 th Addl.District Judge, Surat is

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modified to the extent that the petitioners shall seek prior

permission of the concerned trial Court before any transfer or

alienation of the suit property. Rule is made absolute to the

aforesaid extent.

(SANDEEP N. BHATT,J) SRILATHA