[Cites 15, Cited by 0]
Gujarat High Court
Legal Heirs Of Deceased Thakorbhai ... vs Rameshbhai Dhansukhbhai Mali on 1 May, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 230 of 2025
With
CIVIL APPLICATION (FOR INJUNCTION) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 230 of 2025
With
R/APPEAL FROM ORDER NO. 2 of 2026
With
R/APPEAL FROM ORDER NO. 4 of 2026
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 4 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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LEGAL HEIRS OF DECEASED THAKORBHAI MANCHHABHAI PATEL &
ORS.
Versus
RAMESHBHAI DHANSUKHBHAI MALI & ORS.
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Appearance:
MR. AADIT R SANJANWALA(9918) for the Appellant(s) No. 1,1.1,1.2,1.3,2
JENIL M SHAH(7840) for the Respondent(s) No. 19,20,21
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 01/05/2026
COMMON JUDGMENT
1. The present Appeals from Orders are filed under Order XLIII
Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter,
referred to as "the Code") by the appellants - original plaintiffs
challenging the order dated 25.09.2025 passed by the learned
Trial Court rejecting applications below Exhibits - 5, 53 and 54.
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2. Heard learned Senior Advocate Mr. Mihir Shah assisted by
learned advocate Mr. Aadit Sanjanwala for the appellants and
learned Senior Advocate Mr. Mehul Shah assisted by learned
advocate Mr. Jenil Shah appearing on caveat for respondent Nos.
19 to 21.
3. The brief facts of the case are as under:
3.1 The appellants - plaintiffs have filed a suit inter alia
seeking specific performance of the agreement to sell dated
11.10.1985 and permanent injunction with respect to land
bearing Survey No. 54/1, admeasuring 5,867 sq. mtrs.
Mouje - Anjana, Taluka - Udhna, District - Surat, which is
allotted final plot No. 94 admeasuring about 4,410 sq. mtrs.
in Town Planning Scheme No. 7 (Anjana). The plaintiffs,
under the said agreement to sell, were put into possession.
The suit land being Survey No. 54/1, was originally owned
by Naginbhai Punjiyabhai Mali, Kantibhai Naginbhai Mali,
Dhansukbhai Punjiyabhai Mali, Mahesh Dhansukhbhai Mali,
Ramesh Dhansukhbhai Mali and Rajubhai Dhansukhbhai
Mali. Original owners decided to sell the suit land to
defendant No. 16, Vasantlal Thakordas Mali by executing an
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agreement to sell dated 10.08.1985, possession of the suit
land was handed over to defendant No. 6 after accepting full
amount of consideration. Thereafter, Thakorbhai
Manchhabhai Patel decided to purchase the suit land from
Vasantlal Thakordas Mali at a sale consideration of
Rs.1,76,400/- and agreement to sell dated 11.10.1985, was
executed by Dhansukbhai Punjiyabhai Mali, Naginbhai
Punjiyabhai Mali was executed in favour of Thakorbhai
Manchhabhai Patel. Defendant No. 16 was shown as a
confirming party to the said agreement to sell. Original land
owners handed over peaceful and vacant possession of the
suit land to Thakorbhai Manchhabhai Patel. In the year
1994, Thakorbhai Manchhabhai Patel received brain stroke
and remained in coma till his death on 27.04.2002. Plaintiff
No. 1(a) to 1(c) are legals heirs of deceased Thakorbhai
Manchhabhai Patel. Plaintiff No. 1(a) to 1(c) agreed to sell
the suit land to plaintiff No. 2 by executing an agreement to
sell. Defendant Nos. 1 to 15, who are the legal heirs of
original owners, were requested to execute a registered sale
deed in a suit bearing Regular Civil Suit No. 447 of 1995
instituted by one Ashok Kumar Laxmandas Patel with
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regard to Survey Nos. 54/2 and 54/3 of Moujhe - Anjana.
Present plaintiffs were implied as legal heirs of Thakorbhai
Manchhabhai Patel as defendant No. 8. In the month of
September 2013, upon service of summons of the aforesaid
suit, the plaintiffs on noticing the fact that defendant Nos. 1
to 15 have executed an agreement to sell in favour of
defendant No. 18, Nareshbhai Gordhanbhai Sarasiya and a
power of attorney was executed by defendant Nos. 1 to 15
in favour of defendant No. 17, Karanbhai Samantbhai
Sarasiya. It is the case of appellants that pending suit,
defendant Nos. 1, 3 to 11 executed a registered sale deed
dated 30.11.2015, in favour of Laljibhai Dungarbhai Dalia,
Maganbhai Mohanbhai Lakhankiya and Nareshbhai
Haribhai Babaria. On 21.12.2015, plaintiffs were
dispossessed by defendants by breaking the barbed wire
fencing and by constructing a boundary wall. Plaintiff,
therefore, filed application Exhibit - 54 seeking an interim
mandatory injunction to restore their possession and also
filed an application, Exhibit - 53 for a relief of temporary
injunction restraining defendant Nos. 19 to 21 from
disturbing plaintiffs' possession and/or selling the suit land.
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The learned Trial Court vide order dated 25.09.2025,
rejected all the three applications i.e. Exhibits - 5, 5 3 and
3.2 Being aggrieved and dissatisfied with the rejection of
the applications, the appellants - plaintiffs have preferred
the present Appeals from Orders.
4. Learned Senior Advocate for the appellants - plaintiffs
submitted that on 10.08.1985, an agreement to sell was executed
for Survey No. 54/1 in favour of Vasantlal Thakordas Mali
(defendant No. 16). Thereafter, the agreement to sell dated
11.10.1985, was executed only by the then owners of Survey No.
54/1, namely, Dhansukbhai Punjiyabhai Mali and Naginbhai
Punjiyabhai Mali for sale of the suit land in favour of Thakorbhai
Manchhabhai Patel. It is submitted that Vasantlal Thakordas Mali
signed the said agreement as a consenting party. Clause-2
records payment of consideration through cheque. The agreement
to sell was coupled with handover of possession and the entire
consideration was paid at the time of execution of the agreement
to sell. Similar Agreements to sell were also executed for Survey
Nos. 54/2 and 54/3. Thakorbhai Manchhabhai Patel suffered a
brain haemorrhage and went into coma in the year 1993.
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Thakorbhai Manchhabhai Patel eventually died on 27.04.2002. His
daughter Hetalben also suffered from Dermatomyositis and died
on 25.04.2008. It is submitted that the heirs of Thakorbhai
Manchhabhai Patel received summons dated 13.08.2013 for the
purpose of being brought on record of Regular Civil Suit No. 447
of 1995 as heirs of Thakorbhai Manchhabhai Patel. The said suit
of 1995 was only in relation to Survey Nos. 54/2 and 54/3. The suit
appears to be instituted by persons claiming to be plot-holders in
Survey Nos. 54/2 and 54/3 to restrain the owners, defendant Nos.
1 to 7 therein, and defendant No. 8 - Thakorbhai Manchhabhai
Patel, from disturbing possession of the plot holders. Thakorbhai
Manchhabhai Patel did not appear in the suit proceedings, owing
to his medical condition. Exhibit - 5 Application was disposed of
vide order dated 20.10.2005 and the interim relief granted on
15.04.1995 was continued till final disposal of the suit. The
findings of issue Nos. 1 to 3 records that defendant No. 8,
Thakorbhai Manchhabhai Patel had passed away and nobody had
appeared on his side. The Exhibit - 5 order was challenged by
filing Civil Misc. Appeal No. 104 of 2005 before the learned District
Court and was dismissed vide order dated 08.11.2012. The order
dated 08.11.2012 was further challenged before the Co-ordinate
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Bench of this Court in Special Civil Application No. 35 of 2013.
The Co-ordinate Bench of this Court dismissed the petition vide
order dated 11.02.2013 without going into the merits, confirming
the injunction and directing the learned Trial Court to decide the
suit within one year. Temporary injunction was ordered which
operated from 1995 till withdrawal of the suit on 21.12.2014. It is
submitted that in the local investigation, it was found that the gate
for Survey No. 54/1 was opened through keys provided by the
plaintiffs and that there were notice boards erected on site,
declaring that 4/1 was in occupation and possession of plaintiffs.
Photographs produced below Exhibit - 114, the possession of the
plaintiffs' on the date of institution of the suit is clearly seen.
During the pendency of the suit, the plaintiffs registered lis
pendens on 14.07.2015. Pending the suit, defendant Nos. 19 to 21
got a sale deed dated 30.11.2015 executed in their favour. The
sale deed records that Special Civil Suit No. 519 of 2014 was
pending in respect of the suit land. Defendant Nos. 19 to 21, have
therefore, purchased the suit land with open eyes and full
knowledge of the plaintiffs' pending claim for specific performance.
Thereafter, on 14.12.2015, the plaintiffs filed application below
Exhibit - 53 to restrain the purchasers from disturbing the
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plaintiffs' possession or creating third party rights. Between
18.12.2015 and 21.12.2015 attempts were made to forcibly take
possession of the suit land from the plaintiffs. Eventually,
possession was forcibly snatched with the aid of police authorities.
The plaintiffs made several attempts / representations / complaints
/ applications to the police authorities desperately seeking their
intervention and protection. The plaintiffs filed application below
Exhibit - 54 on 29.12.2015 for an interim mandatory injunction to
restore the plaintiffs possession of Survey No. 54/1. The prayer for
temporary injunction could not have been rejected on the ground
of plaintiffs not being in possession. The Plaintiffs were forcibly
dispossessed. Appellants have paid full consideration and
possession was handover at the time of execution of ATS. When
the agreement for sale is coupled with possession and
consideration was entirely paid, the appellants have significant
right, title and interest in the land. The sale deed, having remained
unexecuted, has no bearing or significance and does not affect the
appellant's long standing rights in the land. It is submitted that the
learned Trial Court did not appreciate that the purchase was made
with full knowledge of pending litigation. The appellants are prior
agreement to sell holders. The purchasers have snatched
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possession by dubious means. The defendants have taken law in
their own hands and have acted in brazen disregard of judicial
process. Balance of convenience overwhelmingly weighs in favour
of the appellants as construction is being put up. The learned Trial
Court did not consider that construction in Survey No. 54/1 has
reached only till plinth stage. The construction was required to be
stopped and current status of the land may be preserved, failing
which defendant Nos. 19 to 21 will complete construction, change
the entire nature of the property and then claim equities. Time has
not been made the essence of the agreement to sell. Therefore,
as per Article 54, cause of action would accrue when the plaintiffs
have noticed that performance is refused. Even otherwise,
performance was impossible earlier. The execution of sale deed
was to be done after obtaining Section 43 permission as per
Clause-3. The litigation regarding applicability of Section 43
attained finality only on 16.09.2015, when the restrictions of
Section 43 were declared inapplicable. Before that it would not
have been possible to execute the sale deed. The orders passed
for Survey Nos. 54/2 and 54/3 have a significant bearing for
Survey No. 54/1 as well. Based on the said orders, the agreement
to sell for Survey No. 54/1 also stands proved prima facie.
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5. Learned Senior Advocate for the appellants has relied upon
the following decisions:
In the case of Maharwal Khewaji Trust (Regd.,) Farikot
Vs. Baldev Das reported in (2004) 8 SCC 488, it was held by the
Hon'ble Apex Court 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 case of Ibrahim Shah Mohammad and others Vs.
Noor Ahmed Noor Mohammad and others reported in AIR
1984 Guj 126, the Hon'ble Division Bench of this Court held that
the Court should always lean towards seeing that there is no
multiplicity of proceedings and also that the proceedings should go
on as far as possible, so smooth that a decision can be arrived at
between the parties who are on record as early as possible.
In the case of Dev Prakash and another Vs. Indra and
others reported in (2018) 14 SCC 292, the Hon'ble Apex Court
held that the very essence of the concept of temporary injunction
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and receivership during the pendency of a civil litigation involving
any property is to prevent its threatened wastage, damage and
alienation by any party thereto, to the immeasurable prejudice to
the other side or to render the situation irreversible not only to
impact upon the ultimate decision but also to render the relief
granted illusory.
In the case of N. Srinivasa Vs. Kuttukaran Machine Tools
Limited reported in (2009) 5 SCC 182, if an order restraining the
respondent from creating third-party interest or from transferring
the property in dispute is not granted till an award is passed, the
appellant shall suffer irreparable loss and injury and the entire
award, if passed in his favor, would become totally negated and it
would be difficult for the appellant to ask the respondent to execute
the sale deed when a third-party interest has already been created
by sale of the property in dispute and when possession delivered
to the third party. The High Court observed that the order shall not
be understood to have limited the power of the arbitrator to
consider the dispute on all the respects, including grant of specific
performance of the contract, but by vacating the interim relief to
the appellant, the High Court has rightly and entire arbitration
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proceedings infructuous.
Except above, no other submissions were made by learned
Senior Advocate for the appellants - plaintiffs.
6. Per contra, learned Senior Advocate for respondent Nos. 19
to 21 contended that plaintiffs were never in possession of the suit
property. The only evidence produced by the plaintiffs to establish
alleged possession is the alleged agreement to sell of the year
1985. Even in the Regular Civil Suit No. 447 of 1995 (for survey
Nos. 54/2 and 54/3 only), it is the say of the original owners i.e.
respondent Nos. 1 to 15 herein, that plaintiff was never in
possession and further disputed the alleged agreement to sell.
Against this evidence, the respondents produced a report of circle
of officer dated 02.05.2015 which categorically states that plaintiffs
are not in possession and original owners are in possession.
Payment of land revenue by original owners shows name of the
original owners and does not reflect the name of the plaintiffs
anywhere. The registered sale deed dated 30.11.2015 in favour of
the respondent Nos. 19 to 21 categorically mentions transfer of
possession from original owners to the purchasers and the police
complaints preferred by the plaintiffs were not entertained by the
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police and the complaints were closed since no offence was made
out. The Court Commissioner's report was prepared ex-parte and
in absence of original owners.
7. It is further submitted that defendants have purchased the
land by paying huge consideration of Rs.5,84,32,800/- by virtue of
execution of registered sale deed. The land was converted into
non-agricultural land after payment of huge premium vide order
dated 17.07.2017. The development permission was obtained. The
present case is of infrastructure project wherein two towers have
been built and third tower is under construction for purpose of
shopping complex. It is contended that once the plaintiff quantifies
damages in the plaint, then there is no question of any irreparable
injury causing to the plaintiff as per settled position of law. No
evidence is produced on record to show that the plaintiffs have
paid the entire consideration of Rs.1,76,000/- to two of the original
owners out of 6 co-owners under the alleged agreement to sell. It
is further contended that an unregistered and unnotarized
agreement to sell dated 11.10.1985 with possession is not
admissible in evidence. The agreement to sell is required to be
compulsorily registered if the same is with possession as per
Article 20, Explanation 1 of the Stamp Act otherwise, such
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document is not admissible in evidence under Section 33 and 34
of the Act. Hence, the present agreement to sell cannot be looked
at in the evidence as per settled position of law. Admittedly, the
first agreement to sell dated 10.08.1985 was executed by 6 joint
co-owners of land in question in favour of Vasantlal Thakordas
Mali. However, the present agreement to sell is executed by just
two co-owners wherein, Vasantlal Thakordas Mali has signed a
confirming party. Therefore, specific performance of such an
agreement is not enforceable as per settled position of law.
Despite objections of the plaintiffs, all the orders in revenue entry
proceedings and N.A. proceedings are passed in favour of the
present respondents. It is contended that the view taken by the
Lower Court is not ex-facie perverse or suffering from patent
illegality. Therefore, the plaintiffs do not have any prima facie case
and balance of convenience is also in favour of the respondents.
Further, no irreparable injury would be caused to the plaintiffs and
hence, the present Appeals from Orders is required to be
dismissed.
8. Learned Senior Advocate for respondent Nos. 19 to 21 has
relied upon the following decisions:
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1. Decd Shaikh Ismailbhai Hushainbhai Through Lh Vs.
Vankar Ambalal Dhanabhai reported in 2024 (1) GLH 222
2. Ece Industries Limited Vs. S.P.Real Estate Developers
Private Limited reported in 2009 (12) SCC 776
3. Best Sellers Retail (India) Pvt. Ltd. Vs. Aditya Birla
Nuvo Limited reported in 2012 (6) SCC 792
Except above, no other submissions were made by learned
Senior Advocate for respondent Nos. 19 to 21.
9. Having considered the submissions canvassed by learned
Senior Advocates for the respective parties and upon perusal of
the papers placed on record, it appears that the appellants -
plaintiffs filed a suit seeking specific performance of the agreement
to sell dated 11.10.1985 and permanent injunction with respect to
land bearing Survey No. 54/1, admeasuring 5,867 sq. mtr. of
Mouje - Anjana, Taluk - Udhna, District - Surat, which is allotted
final plot No. 94 admeasuring about 4,410 sq. mtr. in Town
Planning Scheme No. 7. The plaintiffs, under the aforesaid
agreement to sell, were put into possession. The suit land being
Survey No. 54/1, was originally owned by Naginbhai Punjiyabhai
Mali, Kantibhai Naginbhai Mali, Dhansukhbhai Punjiyabhai Mali,
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Mahesh Dhansukhbhai Mali, Ramesh Dhansukhbhai Mali and
Rajubhai Dhansukhbhai Mali, the original owner, decided to sell
the suit land to defendant No. 16, Vasantlal Thakordas Mali by
executing an agreement to sell dated 10.08.1985. Possession of
the suit land was handed over to defendant No. 16 after accepting
full amount of consideration. Thereafter, Thakorbhai Manchhabhai
Patel decided to purchase the suit land from Vasantlal Thakordas
Mali at sale consideration of Rs.1,76,400/- and agreement to sell
dated 11.10.1985, Dhansukhbhai Punjiyabhai Mali, Naginbhai
Punjiyabhai Mali was executed in favour of Thakorbhai
Manchhabhai Patel. Defendant No. 16 was shown as a confirming
party to the said agreement to sell. Original land owners handed
over peaceful and vacant possession of the suit land to Thakorbhai
Manchhabhai Patel. In the year 1994, Thakorbhai Manchhabhai
Patel suffered brain stroke and remained in coma till his death on
27.04.2002. Plaintiff No. 1(a) to plaintiff No. 1(c) are the legal heirs
of deceased Thakorbhai Manchhabhai Patel. Plaintiff No. 1(a) to
plaintiff No. 1(c) agreed to sell the suit land to plaintiff No. 2 by
executing an agreement to sell. Defendant Nos. 1 to 15, who are
the legal heirs of original owners were requested to execute a
registered sale deed in a suit bearing Regular Civil Suit No. 447 of
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1995 instituted by one Ashok Kumar Laxmandas Patel with regard
to Survey No. 54/2 and 54/3 of Moujhe - Anjana. Plaintiffs, were
implied as legal heirs of Thakorbhai Manchhabhai Patel as
defendant No. 8. In the month of September, 2013, service of
summons of the aforesaid came to be issued to plaintiffs. The
plaintiffs noticed the fact that defendant Nos. 1 to 15 have
executed an agreement to sell in favour of defendant No. 18,
Nareshbhai Gordhanbhai Sarasiya and a power of attorney
executed by defendant Nos. 1 to 15 in favour of defendant No. 17,
Karanbhai Samantbhai Sarasiya and pending suit, defendant No.
1, 3 to 11 have executed a registered sale deed dated 30.11.2015,
in favour of defendant Nos. 19 to 21. It is alleged by plaintiffs that
on 21.12.2015 defendants dispossessed plaintiffs by breaking the
barbed wire fencing and constructed a boundary wall. Plaintiffs
amended the plaint by inserting prayer for cancellation of sale
deed dated 30.11.2015 and for restoration of possession. Plaintiffs
have also moved applications below Exhibits - 54 and 55, praying
for a relief of injunction restraining defendant Nos. 19 to 21 to deal
with the suit land in any manner and a relief of restoration of
possession.
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10. Defendant Nos. 19 to 21, who are transferees pending suit,
purchased the suit land from original owners by paying a huge
amount of consideration of Rs.5,84,32,800/- and the original
owners handed over actual possession of suit land to the
defendants. Defendants have also purchased land bearing
Revenue Survey No. 54/2 and Revenue Survey No. 54/3 from
original owners, and after execution of three sales deeds,
defendants had applied before the Collector, Surat for carrying out
activities of non-agriculture on 17.07.2017, on Survey No. 53/1.
Collector, Surat granted such permission. In the year 2017, plans
for construction have been sanctioned by Surat Municipal
Corporation and defendant Nos. 19 to 21 have been granted
permission to construct over the suit land. Defendants - original
owners have denied execution of agreement to sell dated
10.08.1985 in favour of defendant No. 16 and have also denied the
execution of an agreement to sell dated 11.10.1985 executed in
favour of Thakorbhai Manchhabhai Patel. It is the contention of
defendants that the alleged agreement to sell dated 10.08.1985 is
signed only by four co-owners out of total six co-owners. Whereas
the agreement to sell dated 11.10.1985 also does not bear the
signatures of all the co-owners but it is signed by only two of the
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co-owners out of the total six co-owners. The plaintiffs have also
not produced agreement to sell alleged to have been executed in
favour of plaintiff No. 2 by plaintiff Nos. 1(a) to 1(c). Regular Civil
Suit No. 447 of 1995 was not pertaining to the suit land, but it
pertained to land bearing Survey No. 54/2 and 54/3 of Moujhe -
Anjana. It also appears that Thakorbhai Manchhabhai Patel, during
his lifetime has not sought for any relief of specific performance
against the original owners and after about 12 years of passing
away of Thakorbhai Manchhabhai Patel, heirs of deceased
Thakorbhai Manchhabhai Patel have filed the present suit.
Defendants have also asserted their possession over the suit land
pursuant to a registered sale deed dated 30.11.2015. It is also
denied by defendants that they have dispossessed plaintiffs from
the suit land.
11. It is the submission of learned Senior Advocate for the
plaintiffs that the consideration amount was paid to erstwhile
owners by Thakorbhai Manchhabhai Patel by cheques and the
bank entries have been produced in support of the contention that
the amount of consideration has been paid. Proceedings under
section 63 of the Tenancy Act was also going on. The learned
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Court below after appreciating the material placed on a record,
prima facie found that plaintiffs were not in possession of the suit
land and on the ground that the suit for specific performance filed
belatedly, as an agreement to sell, does not create any right in the
land as compared to a right, title, and interest created through a
registered sale deed executed in favour of defendant Nos. 19 to
21, rejected Injunction Application and an application for
restoration of possession.
12. The question involved in the present Appeals from Orders is
whether, from the material available on record, plaintiffs have
established their possession on the suit land pursuant to an
agreement to sell dated 11.10.1985. To substantiate possession,
much reliance has been placed upon the agreement to sell dated
10.08.1985 executed by erstwhile owners in favour of defendant
No. 16 and, thereafter, an agreement to sell dated 11.10.1985,
executed by owners in favour of Thakorbhai Manchhabhai Patel.
Plaintiffs have also relied upon a report of Court Commissioner to
establish that plaintiffs are in possession of the suit land. On
perusal of the said agreement to sell, it stipulates almost identical
conditions as stipulated in agreement to sell dated 11.10.1985.
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Both the agreements to sell do not stipulate any condition in favour
of either defendant No. 16 or in favour of Thakorbhai Manchhabhai
Patel to get the execution of registered sale deed on a future date.
No right has been given by co-onwers in favour of defendant No.
16 or in favour of Thakorbhai Manchhabhai Patel to have a right to
seek specific performance of respective agreements to sell.
13. It is noted that Regular Civil Suit No. 447 of 1995 came to be
instituted by Ashok Kumar Laxman Das Patel and others against
the original land owners as well as against Thakorbhai
Manchhabhai Patel for a relief of declaration and permanent
injunction with regard to land bearing Survey No. 54/2 and 54/3 for
which the present plaintiffs have also filed separate suits along
with the present suit. It is alleged by Ashok Kumar Laxman Das
Patel and others in the suit that Thakorbhai Manchhabhai Patel is
a builder and land organizer who is having possession. And
Thakorbhai Manchhabhai Patel has allotted plots to plaintiffs and
has also handed over possession to respective plaintiffs for
development. The learned Court, while granting ad interim
injunction, on 15.04.1995, in Regular Civil Suit No. 447 of 1995
found that Ashok Kumar Lakshman Das Patel and others are in
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possession and defendant - original owners as well as Thakorbhai
Manchhabhai Patel were directed not to dispossess plaintiffs
without due process of law and from entering into the suit property.
By an order dated 20.10.2005, below Exhibit - 5 in Regular Civil
Suit No. 447 of 1995, the Court has observed that Thakorbhai
Manchhabhai Patel has handed over possession of suit lands to
plaintiffs by accepting consideration. The said order was confirmed
by an order dated 15.04.1995. The order of injunction came to be
confirmed by the High Court. The record indicates that on
21.12.2014, Regular Civil Suit No. 447 of 1995 came to be
withdrawn in Lok Adalat. In the opinion of this Court, the admission
of plaintiffs that Thakorbhai Manchhabhai Patel is in possession
will not help present appellants - plaintiffs in establishing
possession of Survey No. 54/1 so much so that they said suit was
pertaining to Survey No. 54/2 and Survey No. 54/3. Reliance has
been placed by learned Senior advocate on the report of court
Commissioner, which indicates that on the date of the suit,
plaintiffs were in possession as a board is also found on the suit
land. Such reliance on commissioner's report in the case where
the suit property is an open land is not prima facie evidence. A
report of a Court Commissioner cannot be used as an evidence to
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establish possession of a party. The plaintiffs must establish
settled possession by showing independent evidence.
Undisputedly, plaintiffs have not been able to establish that they
were in possession on the date of the suit. More particularly,
original landowners have denied possession of defendant No. 16
and possession of Thakorbhai Manchhabhai Patel. Defendant
Nos. 19 to 21 being holder of a registered saledeed, though
pending suit, of an open land is required to be believed to be in
possession of the suit land as the settled proposition of law is that
possession of an open land is presumed to have been with a
person who is holding registered sale deed. Moreover, the
Mamlatdar, Surat city, Udhana in its report, dated 02.05.2015 has
stated that Survey No. 54/1 is an open piece of land and the land
is in possession of land owners. The original land owners have
also stated in the enquiry that owners have not sold the disputed
land to any anyone else and they are in possession of the land in
question. Restoration of possession in such set of facts cannot be
entertained. A separate prayer in the plaint for restoration of
possession is also prayed for by plaintiffs and therefore, if at an
interim stage, mandatory relief of restoration of possession is
granted, it would amount to a passing a decree without Trial. The
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Court has power to restore possession to a party who has been
dispossessed pending suit. A party who has been dispossessed by
other party or by a third party, must establish prima facie that he
was in settled possession on the date of the suit. In the present
case, unless and until parties are put to the stage of evidence, on
the basis of pleadings and affidavits, possession of plaintiffs
cannot be believed. Another question which shall be adjudicated
whether the plaintiffs are entitled to specific performance of an
agreement to sell, when agreement does not prescribe any
stipulation to seek a relief of specific performance upon breach of
any terms and conditions of agreement to sell.
14. Prima facie case is not sufficient for the purpose of granting
interim relief at the interlocutory stage. The Court must also
consider the balance of convenience and irreparable loss by
granting or refusing injunction. Balance of convenience must also
be in favour of the party claiming such interim relief and if the
interim relief is denied at such stage, an irreparable loss or injury
would be caused to the party claiming such interim relief. In the
present case, even if it is assumed that the appellants - original
plaintiffs have a strong prima facie case in their favour and
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plaintiffs are likely to succeed ultimately in the suit, as far as
balance of convenience and irreparable, loss or injury are
concerned, the land in question being ordered to have been
converted into an old tenure land upon the application of defendant
Nos. 19 to 21 and a development permission being granted by
Surat Municipal Corporation in favour of defendant Nos. 19 to 21,
are bound to be rejected. Thus, considering the overall view of the
matter and considering the fact that rival contentions of the parties
are yet to be processed and examined at the time of Trial, it is not
just and proper to grant any relief as prayed for in application
Exhibits - 5, 53 and 54, respectively in favour of plaintiffs.
15. The decisions relied upon by learned Senior Advocate for the
appellants are not helpful to the appellants as the law laid down in
the said decisions are not germane to the controversy found in the
present Appeals from Orders.
16. In the case of Ece Industries Limited (Supra), The Hon'ble
Apex Court held that it is well settled that when construction has
been made on land which is of considerable magnitude and when
the plaintiff shall not face any substantial injury, if no order of
injunction is granted because of payment or deposit of entire
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amount payable by defendant to plaintiff under the agreement,
though belatedly, we are of the view that the court will not, as a
matter of course, pass an order of injunction against the other
party restraining the other party from making any construction on
the suit property till the disposal of the suit.
If ultimately the suit filed by the plaintiff-appellant is decreed,
he can be compensated in terms of damages or the defendants -
respondents may be directed to pull down the construction and
deliver vacant possession to the plaintiff-appellant and no equity
can be claimed for such construction by the defendant-respondent.
On the other hand, in our view, if at this stage an order of
injunction is granted against the defendants-respondents from
proceeding with further construction in the suit property, it would
undoubtedly destroy the constructions already made by the
defendant-respondents and the defendant-respondents will suffer
irreparable loss and injury for not allowing them to make
construction on the suit property. Therefore, in view of our
discussions, made herein above the entire amount payable by the
defendant-respondent having been paid, deposited in favour of
plaintiff-appellant, there is no reason to pass an order of injunction
against the defendants-respondents when the plaintiff-appellant
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would not face substantial injury for permitting the defendant-
respondent to proceed with the construction in the suit property.
17. In the case of Best Sellers Retail (India) Pvt. Ltd., (Supra),
the Hon'ble Apex Court held that it is the settled principle of law
that even where a prima facie case is in favour of the plaintiff, the
Court will refuse temporary injunction if the injury suffered by the
plaintiff on account of the refusal of temporary injunction was not
irreparable. It was further held that when damages are claimed, it
cannot be said that plaintiff will suffer irreparable loss if injunction
is not granted.
18. On the facts placed on record, it has been submitted by
learned Senior Advocate for the respondent that the land is under
development. Two towers have been built and third tower is under
construction for the purposes of shopping complex. The plaintiffs
have also quantified damages in the plaint. Therefore, also the
balance of convenience and question of irreparable loss would tilt
in favour of defendant Nos. 19 to 21.
19. In view of the above discussion and the facts which surface
on record, it is sufficient to hold that the learned Trial Court has not
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committed any error and the impugned orders are in consonance
with the settled position of law. Hence, all Appeals from Orders are
hereby dismissed. The learned Trial Court shall decide the suit as
early as possible preferably within a period of six months from the
date of receipt of this order without being influenced by the
observations made hereinabove. The learned Trial Court shall
decide the suit strictly on merits, evidence and position of law.
(D. M. DESAI,J)
MUSKAN
