Gujarat High Court

Sunandaben D/O Jagannath Shalabhai ... vs Bipinchandra Shantilal Shah on 5 May, 2025

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                              C/AO/75/2025                                 ORDER DATED: 05/05/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/APPEAL FROM ORDER NO. 75 of 2025

                                                          With
                                       CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                         In R/APPEAL FROM ORDER NO. 75 of 2025
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                               SUNANDABEN D/O JAGANNATH SHALABHAI PATIL & ORS.
                                                   Versus
                                     BIPINCHANDRA SHANTILAL SHAH & ORS.
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                      Appearance:
                      MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1,2,3,3.1,3.2
                      NAJMUDDIN R MEGHANI(7834) for the Appellant(s) No. 1,2,3,3.1,3.2
                      THAKKAR AND PAHWA ADVOCATES(1357) for the Respondent(s) No.
                      1,2.4
                      VIDIT S SHARMA(7365) for the Respondent(s) No. 2,2.1,2.2,2.3
                      ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                       Date : 05/05/2025

                                                        ORAL ORDER

1. Admit. Learned advocate Ms.Sangita Pahwa for Thakkar

and Pahwa waives service of notice of admission on behalf of

the respondent Nos.1 and 2. The presence of respondent Nos.3

to 5 is not required as appellant is not seeking any relief, at

this stage, against the respondent Nos.3 to 5. With the consent

of learned advocates appearing for respective parties, appeal

itself is heard finally today.

2. Heard learned advocate Mr.Mehul Sharad Shah for the

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appellant and Ms.Sangeeta Pahwa for the respondent Nos.1 and

2 - main Contesting respondents on caveat.

3. The Appellants herein are original plaintiffs and

respondents herein are original defendants. Herein after, parties

will be referred as per their original position in the suit.

4. At the outset, learning advocate Mr. Shah would submit

that plaintiffs are daughters and legal heirs of one of daughter

of Late Mr. Jagannath Shalabhai Patil, who died on 26.06.2008

but in the revenue record, only the name of sons of their late

father were mutated on 31.07.2008 who happens to be their

brothers. The respondent Nos.3 to 5 herein are original

defendant No.3 to 5 happens to be the brothers of plaintiffs

had entered into an agreement to sell with respondent nos.1

and 2 herein who are original defendant No.1 & 2 in relation

to their ancestral property which is now a subject matter of

suit filed by plaintiffs.



                        4.1       Learned advocate Mr. Shah would further submit that







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                               C/AO/75/2025                                      ORDER DATED: 05/05/2025

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defendant Nos.1 and 2 herein had preferred a Special Civil Suit

No.147 of 2012 again defendant Nos.3 to 5 seeking specific

performance of said agreement which came to be decreed,

thereby, a Court Commissioner was appointed by court

concerned, who executed sale deed for entire piece of land

which is subject matter of the suit filed by the present

appellants against the respondents herein.

4.2 Learned advocate Mr. Shah would submit that as such,

rights of daughters are available by birth as per provision S. 6

of Hindu Succession Act, 1956 and law is well settled on this

subject, thereby, plaintiffs have made out prima facie case so

far as their share in the suit property is concerned which was

not only inherited by defendant No. 3 to 5 but plaintiffs as

well being Class-I legal heirs of Late Mr. Jagannath Shalabhai

Patil.

4.3 Learned advocate Mr. Shah would further submit that

some of the observations made by the trial court as regards to

the collusion with the defendant nos.3 to 5 by plaintiffs are

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uncalled for. As such, rights of plaintiffs are independent to

the rights of the brothers, who could not have executed sale

deed for entire piece of land and merely, because plaintiffs

have not questioned the revenue entry so mutated at the

instance of defendant Nos.3 to 5 (brothers) would not

automatically disentitled plaintiffs to get their share in the

property.

4.4 Learned advocate Mr. Shah would further submit that

considering the entire set of facts and circumstances of the

case, as such, an injunction, so prayed, ought to have been

granted.

4.5 Lastly, Learned advocate Mr. Shah would submit that

trial court has committed a gross error by imposing a costs of

Rs.50,000/- without giving any specific finding about

imposition of such heavy costs while rejecting injection

application.

5. Per Contra, learned advocate Ms.Pahwa appearing for the

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respondent Nos.1 and 2 - main contesting respondents would

submit that when the plaintiffs have not questioned the entry

mutated in the revenue record after the death of their father

in the year 2008 and only the name of their brothers were

mutated as per pedigree submitted by them before revenue

authority whereby, defendant Nos.1 and 2 have entered into

an agreement to sell, to purchase the suit land from them,

now plaintiff cannot question the sale deeds so executed in

favour of defendant Nos.1 and 2 through process of court. She

would submit that plaintiffs having not questioned

judgement/decree passed by competent civil court by

challenging the judgment and decree passed by the competent

court in Special Civil Suit No.147 of 2012 against defendant

Nos.3 to 5, now they have no right to pray for any injunction

against defendant No.1 & 2.

5.1 Learned advocate Ms. Pahwa would further submit

that there are cogent and sufficient reasons assigned by the

trial court while rejecting injunction application which may not

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be disturbed by this court while exercising its appellate power

under Order XLIII Rule 1 of Civil Procedure Code, 1908

(hereinafter referred to as "CPC").

5.2 Learned advocate Ms. Pahwa would further submit

that plaintiffs have definitely colluded with defendant Nos.3 to

5, as a new pedigree executed by the defendant Nos.3 to 5 in

year 2024 indicating the name of plaintiffs would show that

just to overreach the effect of decree and not allow defendant

No.1 & 2 to realize fruits of the said decree, filed suit

belatedly and in such factual situation, no injunction can be

granted in favour of plaintiffs who can be compensated in

terms of money if ultimately succeeds in suit as entire sale

consideration has been already deposited by defendant No.1 &

2 in civil court in relation to suit land.

5.3 Learned advocate Ms. Pahwa would further submit

that judgment and decree in suit filed against defendant Nos.3

to 5 were passed in the year 2017 and the execution was filed

in the year, 2023 and then after in August 2024, the present

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suit is filed, which is definitely filed with collusion with

brothers of plaintiffs just to frustrate said decree.

6. When this Court after taking note of the aforesaid

submissions made by the respective parties, about to record its

reasons, at this stage, learned advocate Mr. Shah, under the

instruction of his clients, does not invite reasons as regards the

merits of the matter except cost imposed upon them.

Nonetheless, Learned advocate Mr. Shah would request that so

far as the right of daughters of late Jagannath Shalabhai Patil

i.e., plaintiffs are concerned, this Court may protect their

interest, at least, by directing the defendant Nos.1 and 2 to

inform the trial Court, whenever they intended to

sell/alienate/transfer/mortgage etc half of the suit land is

concerned. As at least, considering share of plaintiffs in suit

land, they are entitled to receive half portion of suit land if

not full.

7. Apropos to such request, learned advocate Ms. Pahwa,

under the instruction of her clients would agree to such

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request made by learned advocate Mr. Shah that whenever

defendant Nos.1 and 2 intends to

sell/alienate/transfer/mortgage etc. half portion of suit land to

any third party, they would declare such sale or transfer to the

trial court before having effecting any registration of sale deed

in favour of third parties.

8. So far as question of costs is concerned, learned advocate

Ms. Pahwa has left to the discussion of this court to decide the

issue of the costs.

9. As far as imposition of Rs.50,000/- costs is concerned, I

am not able to get any reasons assigned by the trial court to

impose such exemplary costs upon the plaintiffs and in absence

of any such reasons and even after going through the order

impugned in appeal, nothing found, thereby, it can be said

that plaintiffs have either suppressed any material fact

/committed any fraud or misled the court while submitting

injunction application.








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10. So, in such a situation and in the absence of any reason

so assigned by the Trial Court, I would like to interfere with

the order impugned to the extent of only costs part so imposed

by Trial Court while rejecting injunction application having not

justifiable in the facts and circumstances of the case as well as

no cogent & convincing reasons so assigned by Trial Court for

imposition of such exemplary cost.

11. In view of aforesaid, I would like to pass following order:-

11.1 In view of said request made by learned advocate of

respective parties, the defendant Nos. 1 and 2 are hereby

directed to first disclose to trial Court during pending suit

proceeding whenever they intended to

sell/alienate/transfer/mortgage etc half of the suit land is

concerned in favor of any third party and so also disclosing

the particulars of third parties and nature of transaction

intending to enter into.

11.2 It is always open for the plaintiffs to register a lis

pendens with the concerned registrar in relation to the subject

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matter of the suit if so far not registered.

11.3 The order of imposition of Rs.50,000/- costs by the

trial court is hereby quashed and set aside. The rest of the

order passed by the trial court impugned in the present appeal

is not disturbed.

11.4 It is further made clear that trial Court is required to

decide the lis between the parties as per the evidence coming

forth during course of trial in the suit by giving an opportunity

of hearing to all parties concerned and to adjudicate the suit

in accordance with law without being influenced by any of its

observations so made in the order impugned in the present

appeal as well as any observations so made by this Court in

the present order.

11.5 It is open for both the sides to request the trial court

for expediting the suit proceedings. In a case, where such a

request will be made by either of the parties and they are

undertake to the trial court to extend their cooperation and

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support to complete the trial, such requests may be considered

by the trial court sympathetically.