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AO/1820/2008 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 18 of 2008
With
CIVIL
APPLICATION No. 749 of 2008
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PRAVINBHAI
BHAGVANBHAI & 1 - Appellant(s)
Versus
PARVATIBEN
HIRABHAI KESHAVBHAI & 18 - Respondent(s)
=========================================================
Appearance :
MR
SI NANAVATI, SR. ADVOCATE for MR LR PATHAN for
Appellant(s) : 1 - 2.
MR JIGAR P RAVAL for Respondent(s) : 1,
RULE
SERVED for Respondent(s) : 2, 5,
UNSERVED-EXPIRED (R) for
Respondent(s) : 3,
SERVED BY AFFIX.-(R) for Respondent(s) : 4,6 -
11.
MR MA SAPA for Respondent(s) : 12 - 16.
MR KG VAKHARIA, SR.
ADVOCATE for MR MB PARIKH for Respondent(s) : 17,
NOTICE SERVED BY
DS for Respondent(s) : 18 -
19.
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 12/09/2008
ORAL ORDER
1. Heard
the learned advocates appearing for the parties for final disposal of
the appeal.
2. Appellants
are the original plaintiffs who have instituted Special Civil Suit
No. 145 of 2002 before the learned Senior Civil Judge, Surat. The
suit is for declaration and permanent injunction against the
defendants with respect to land admeasuring 1 acre and 10 gunthas
bearing Survey No. 57/2 of Village Dabholi, Taluka Choryasi, District
Surat. The plaintiffs claim to have purchased the suit land through
a registered sale deed dated 06.07.2001 from one Parvatiben the
original land owner – defendant No. 17 in the pending suit.
It
appears that there are number of sale transactions allegedly created
with respect to suit land and this has given rise to the present
litigation.
In the
above-mentioned suit, the plaintiffs also filed application Exh. 5
and sought interim injunction restraining the respondents from
interfering with the use and
enjoyment of the suit land by the plaintiffs and further
restraining the said defendants from dealing with the land in any
manner by selling, transferring, till final disposal of the suit
proceedings.
After
initially granting ex-parte injunction, the learned 5th
Additional Senior Civil Judge and JMFC, Surat by the impugned order
dated 10.01.2008 dismissed Exh.5 application of the appellants and
vacated ad-interim injunction granted earlier. It is this order
which the appellants have challenged in this appeal.
3. Learned
Senior Advocate Shri S.I. Nanavati for the appellants and learned
Senior Advocate Mr K.G.Vakharia for the concerned respondent have
taken me through various documents on record and made detailed
factual as well as legal submissions.
4. On
behalf of the appellants, it was pointed out that the original land
owner – Parvatiben had sold the land to one Nagindasbhai by a
registered sale deed dated 09.03.1990. Nagindasbhai in turn executed
a Banakhat and also granted irrevocable power of attorney in the year
1997. Eventually, the land was sold to the appellants by a
registered sale deed dated 18.09.2001. Learned Senior Advocate for
the appellants, therefore, submitted that the appellants have become
owners of the suit land and have also been put in possession thereof.
They are enjoying possession of the suit land since many years.
Such possession was initially protected by the Trial Court by
granting ex-parte interim injunction. Many years thereafter,
however, by the impugned order, such injunction was vacated.
It was
contended that the concerned defendants claim to have purchased this
very land through a registered sale deed dated 06.07.2001 executed by
Parvatiben – defendant No. 17 who had no right, title or interest
left in the suit property after she once sold the same to
Nagindasbhai.
It was
contended that though the Trial Court heavily relied on the
allegation that Nagindasbhai was not an agriculturist and therefore,
could not have purchased the land in question which was agricultural
land, in the sale deed dated 09.03.1990 itself entered into between
Parvatiben and Nagindasbhai, it is clearly mentioned that the
purchaser – Nagindasbhai is an agriculturist. He further contended
that in any case, sale in favour of non-agriculturist
even if opposed to provisions of Section 363
of Bombay Tenancy &
Agricultural Lands Act, 1948 would not be a void transaction,
but only an invalid transaction and since no one had challenged such
sale transaction, it cannot be treated as non-est. In this regard,
reliance was placed on a decision of learned Single Judge of this
Court in the case of Mavjibhai
Dharsibhai & Ors. Vs. State of Gujarat & Ors., reported in
1994(2) GLR Page-1168 and another decision in the
case of Bhagwanbhai
Karamanbhai Bharvad Vs. Arogyanagar Co-Op. Housing Society Limited &
Ors., reported in 2004(1) GLR Page 506.
It was
further contended that in the sale deed executed in favour of the
appellants, it is clearly recorded that possession of the suit
property is being handed over to the appellants. Additionally, my
attention was drawn to various documents on record to urge that the
appellants were enjoying uninterrupted possession of the suit land
since execution of sale in their favour.
It was
contended that at one stage, Parvatiben had filed a Civil Suit
questioning the sale deed and the power of attorney of Balvantbhai,
she had later on withdrawn the proceedings by filing a purshis.
My
attention was also drawn to the Commissioner’s Report to urge that in
the report also, possession of the appellants was reflected.
5. On
the other hand, learned Senior Advocate Mr Vakharia for the concerned
respondent submitted that they had purchased the land directly from
Parvatiben through a registered sale deed. That Nagindasbhai was not
an agriculturist and sale in his favour was, therefore, invalid. In
any case, while the sale transaction took place, the Urban Land
(Ceiling & Regulation) Act, 1976 was in operation and in view of
the provisions contained therein, particularly, Sections 5 and 27,
any such transaction would be void.
He
further submitted that name of Nagindasbhai was not entered in the
revenue records and there was other evidence available to show that
the plaintiffs were not in possession of the suit land. He drew my
attention to the documents signed by Nagindasbhai subsequent to first
sale in his favour, wherein he was described as person involved in
trading and not as an agriculturist.
6. Having,
thus, heard the learned counsel appearing for the parties, the
question that is required to be decided by this Court at this stage
is whether interim injunction should be granted in favour of original
defendants.
7. Firstly,
one may notice that though there is some doubt about the legality of
the sale deed executed by Parvatiben in favour of Nagindasbhai on
09.03.1990, so far no one has challenged such sale deed. All
subsequent transactions leading upto the final sale
in favour of the present appellants, therefore, at the stage when the
Court is considering the question of interim injunction, cannot be
knocked down only on the ground that on account of the provisions
contained in the Bombay Tenancy and Agricultural Land and the Urban
Land Ceiling Act, there is some cloud over the legality of the sale
deed dated 09.03.1990.
8. The
question whether Nagindasbhai purchased the land from Parvatiben by a
registered sale deed dated 09.03.1990 was non-est and void-ab-initio
requiring no such formal declaration can be concluded only after
conducting the trial. At this stage it would not be possible to hold
and declare that the ultimate sale in favour of the present
appellants which was pursuant to a series of transactions subsequent
to first sale of the land by Parvatiben in favour of Nagindasbhai on
09.03.1990 is void on this score.
9. The
question, therefore, needs to be answered is whether there was prima
facie evidence to hold that the plaintiffs were in actual possession
of the suit land. I find that the learned Judge heavily relied on
the invalidity of the sale deed between Parvatiben and Nagindasbhai
to observe that the plaintiffs are not in lawful possession of
the suit land. Learned Judge appears to be under the impression that
though the appellants were in possession of the land, such possession
cannot be termed as lawful possession . In my view, if there
was other evidence establishing longstanding possession of the suit
land of the plaintiffs to which they were put in through a registered
sale deed in their favour, such possession could not have been
described as illegal possession. As already noted, even if there is
some cloud over the legality of sale in favour of Nagindasbhai, at
this point of time, if it is found that the plaintiffs were put in
possession of the suit land pursuant to a registered sale deed by a
person who was prima facie authorised to do so, they cannot be
treated as rank trespassers. The central question that calls for
consideration is whether there was sufficient material to prima facie
believe that the plaintiffs were actually enjoying the suit property
through physical possession.
10. Here,
I find that quite apart from the narration made in the sale
transaction itself which is bound to be there in every such
transaction, there was voluminous evidence to prima facie found that
the appellants were enjoying possession of the suit land since a
considerable period of time.
11. It
is true that the revenue record did not include the name of the
appellants and it is also true that entries in the revenue record
ordinarily would give presumption regarding possession. However, it
is well settled that such presumption is rebuttable
and if there is other evidence suggesting to the contrary, it is open
to the Court to appreciate such material and come to a different
conclusion.
12. In
the present case, the appellants have produced following documents to
demonstrate their possession :-
(i) At
Page 58/G of the Appeal from Order, the Court Commissioner’s Report
is produced in which the Court Commissioner records presence of
boards indicating notice that the land is in possession of the
appellants found at the site.
(ii) At
Pages 47 to 49 of the Appeal from Order, the appellants have
produced bills from Surat Municipal Corporation regarding Corporation
taxes. Such bills show the name of appellant No.1. The taxes appear
to have been paid by the said appellant. These bills pertain to
period from the year 2001 02 onwards.
(iii) At
Pages 59 and 60 of the Appeal from Order, bills from Surat
Electricity Company have been produced pertaining to the period
between 2001 02 wherein also similar possession is emerging.
(iv) Similarly,
at Page 254 of the paper book separately presented, the appellants
have produced list of documents presented before the Trial Court.
Along with the list, there are various documents such as bills,
receipts, official correspondence prima facie showing that the
appellants were in physical possession of the suit land. These bills
include various tax bills of Municipal Corporation and electricity
bills of Surat Electricity Company for the relevant period.
(v) At
Page 269 along with the paper book, the appellants have produced
yet another list along with which, some additional documents were
produced before the Trial Court. One of the document is of
withdrawal purshis dated 23.04.2007
presented by Parvatiben seeking withdrawal of her Special Civil Suit
No. 358 of 2001 challenging the power of attorney given in favour of
Dahyabhai and the sale deed made in favour of the appellants herein
on the strength of such power of attorney.
13. In
nut shell, I find that there was sufficient evidence before the
Trial Court to hold that prima facie, the appellants were in actual
of the suit land. The longstanding possession should not have been
disturbed.
14. In
the result, the Appeal from Order is allowed. The impugned order
dated 10.01.2008 passed by learned 5th Additional Senior
Civil Judge, Surat is quashed and set aside. Status-quo order
granted ex-parte by the Trial Court is revived and shall continue
till final disposal of the suit. It is further provided that even
the appellants will maintain status-quo with respect to title,
possession and position of the land till disposal of the suit. It
would be open for either side to pray for early disposal of the suit
and if such an application is made, the Court shall endeavour to
dispose of the suit early depending on the workload.
It is
clarified that all the above observations are made for dealing with
interim stage of the suit and will not come in the way of either side
in pursuing the suit.
15. With
these observations, the appeal is disposed of. In view of disposal
of Appeal from Order, Civil Application No.749 of 2008 does not
survive and is disposed of accordingly.
(Akil
Kureshi, J.)
mrpandya*
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