JUDGMENT
Ravi R. Tripathi, J.
1. These two appeals are filed by the defendants in Special Civil Suit No. 136 of 2002. Four appellants in Appeal from Order No. 294 of 2002 are the original defendants Nos. 9 to 12, while eight appellants in Appeal from Order No. 295 of 2002, are original defendants Nos. 1 to 8. Both these set of appellants are aggrieved by order dated 29.06.2002, passed below Exh.5 by the learned 6th Joint Civil Judge (S.D.), Rajkot. The learned Judge was pleased to restrain defendants Nos. 9 to 12 (appellants in Appeal from Order No. 294 of 2002) from selling, transferring, assigning and constructing on plot Nos. 1 to 31 and plot Nos. 33 to 40 of revenue survey No. 110 of village Madhapar, admeasuring 20529-3 sq. yds. = 17165-18 sq. mtrs. The learned Judge was also pleased to restrain defendants Nos. 1 to 8 (appellants in Appeal from Order No. 295 of 2002) from selling, transferring, assigning and constructing on plot No. 32 of revenue survey No. 110 of village Madhapar, admeasuring 924-1 sq. yds. = 772-68 sq. mtrs.
2. The suit was initially filed by one M/s. Mulji Lakha & Co., a partnership firm, having its registered office at Raghav Meghjibhai Parsana, Arjun 5, Kisanpara, Rajkot. Thereafter, Shri Mahendrakumar Prabhudas and Shri Govardhanbhai Haribhai Kanabar were allowed to join as plaintiffs, who are respondent Nos. 1 to 3 in both these appeals, while the appellants of each of these appeals are joined as respondents, respectively in each of the appeals. To be precise, appellants of Appeal from Order No. 294 of 2002 are the respondent Nos. 4 to 7 in Appeal from Order No. 295 of 2002, while the appellants Nos. 1 to 8 are the respondent Nos. 4 to 11 in Appeal from Order No. 294 of 2002.
3. Facts required to understand the controversy are as follows:
3.1 The land bearing revenue survey No. 110, admeasuring 6 acres 22 gunthas of village Madhapar, Tal. Dist. Rajkot was purchased by a registered document dated 13.08.1967 (which is produced on record, being mark 4/4) by one Shri Mulji Lakha in his name. On the basis of the said registered document, his name was mutated in the revenue record on 28.10.1967, which was certified also on 28.02.1968 (which is produced at mark 4/5). It is also on record that, Shri Mulji Lakha had applied for N.A., which was granted on 11.02.1969 (which is produced at mark 4/6). Said Shri Mulji Lakha expired on 07.10.1992. Respondent Nos. 4 to 11 (in appeal from order No. 294 of 2002), original defendants Nos. 1 to 8, are the heirs and legal representatives of the deceased. The appellants (in Appeal from Order No. 294 of 2002), original defendants Nos. 9 to 12 purchased the land from the heirs of Mulji Lakha by registered sale deeds, bearing No. 5061, 5062 and 5063 (copies of which are produced at mark 4/15, 4/16 and 4/17), on 13.12.2000. On the basis of the said registered sale deed, mutation entries bearing No. 1297 to 1300 are mutated and the names of the purchasers appellants (in Appeal from Order No. 294 of 2002) are entered in the revenue record.
3.2 Respondent Nos. 1 to 3 in both these appeals (hereinafter referred to as plaintiffs) filed the suit, being Special Civil Suit No. 136 of 2002. It is claimed by the plaintiffs that respondent No. 1 – partnership firm is a registered partnership firm under the Indian Partnership Act, 1932; that the land – the subject matter and dispute, was purchased by the partners of the firm by a registered sale deed dated 13.08.1867 in the name of deceased Patel Mulji Lakha; that on the vary same day, i.e. on 13.08.1967, a partnership deed was also executed between the partners, who were, one Patel Mulji Lakha Parsana, Ramkuvar Bhavanbhai Shah, Smt.Naynaben Pravinchandra, Pravina Mansukhlal, Raghav Meghji Parsana, Mahendrakumar Prabhuda Cholera, Govardhandas Haribhai Kanabar; that the aforesaid land was of the partnership firm. Hence, defendants Nos. 1 to 8 (appellants of Appeal from Order No. 295 of 2002) had no right/power to sale the said land to defendants Nos. 9 to 12 (appellants of Appeal from Order No. 294 of 2002). The suit is filed for a declaration that the sale deeds are nul and void alongwith other consequential reliefs. Plaintiffs have also filed Exh.5 seeking injunction against defendants Nos. 1 to 8 for plot No. 32 and against defendants Nos. 9 to 12 for plot No. 1 to 31 and 33 to 40. The order, passed below this Exh.5 on 29.06.2002, has given rise to these two appeals.
4. It is contended by the plaintiffs that, in the partnership deed, object of the partnership firm is stated to be – to get the purchased land, converted into nonagricultural land, get the plans approved, divide the land into plots, distribute the same with the consent of the partners by draw, in the alternative, to sale the land and the sale price be distributed amongst the partners according to their share. The plaintiffs have set out the history of the land alongwith that of the partnership firm and also the development, which took place between 1967 and the date of the filing of the suit. The plaintiffs have stated that on Urban Land Ceiling Act coming into force, in the year 1976, deceased Mulji Lakha had filed the statement under Section 6(1) on behalf of M/s. Mulji Lakha & Co; that, as the land was declared surplus, M/s. Mulji Lakha & Co. had asked for the permission under Section 20 and as the said permission was rejected by the Deputy Secretary of Revenue Department by its order dated 22.05.1989, M/s. Mulji Lakha & Co. had filed Special Civil Application No. 6722 of 1989 before this Court; that in the said petition, the Hon’ble High Court was pleased to order ‘status quo’, thereafter, on 12.05.1999 that petition was disposed of. It is claimed by the plaintiffs that, thereby, the ownership and possession of the land remained to be that of M/s. Mulji Lakha & Co.
5. The plaintiffs, while narrating the ’cause of action’, have stated that on repeal of the Urban Ceiling Act, 1976, it became possible to sale the land of ownership of the firm, the plaintiffs contacted defendant No. 1 Shri Narshi Muljibhai, who told plaintiffs that, ‘we will call meeting of the partners’, but despite repeated reminders, no meeting was called. Hence, the plaintiffs became suspicious and made inquiry, in which it was found on 05.05.2002 that land of M/s. Mulji Lakha & Co. is sold illegally by the defendant Nos. 1 to 8, committing fraud and breach of trust with the plaintiffs.
6. Heard Mr. P.M.Thakker, learned senior counsel for Thakker Associates, for appellants in Appeal from Order No. 295 of 2002 and Mr. M.D.Pandya with Mr. Mehul H.Rathod for appellants in Appeal from Order No. 294 of 2002 and Mr. Mihir Joshi with Mr. Vimal M.Patel for respondent Nos. 1 to 3 in both these appeals. The learned advocates for the appellants strenuously urged that the learned Judge has committed an error in granting injunction against them. They submitted that the said order is passed without taking into consideration most material aspect of the matter. Not only that, important and relevant documents are not appreciated by the learned Judge in the correct perspective and, therefore, this order is required to be quashed and set aside.
6.1 Mr. P.M.Thakker, learned senior counsel submitted that the learned Judge should have refused any injunction in favour of the plaintiffs, in as much as, his clients, heirs of deceased Mulji Lakha are the absolute owners of the property in question, because the suit property was purchased by registered document by Late Shri Mulji Lakha in his name on 13.08.1967 and the name of Shri Mulji Lakha was mutated in the revenue record on 20.10.1967 by revenue entry No. 249, which was certified on 28.02.1968 and since then, the name of Late Shri Mulji Lakha has continued in the revenue record as owner of the land, to which plaintiffs have never objected at any point of time. When Shri Mulji Lakha expired in the year 1992, at that time, his clients (appellants in Appeal from Order No. 295 of 2002), original defendant Nos. 1 to 8 had approached the Court of law for grant of Letter of Administration, which was granted by the Court and, thereupon, names of his clients were entered into the revenue record as the owners of the suit property. This, too, continued till his clients sold the land in question in favour of respondent Nos. 4 to 7 (in appeal from Order No. 295 of 2002 – appellants of Appeal from Order No. 294 of 2000), original defendants Nos. 9 to 12. He submitted that in this fact and situation, the learned Judge could not and should not have granted the injunction in favour of the plaintiffs.
6.2 Learned senior counsel, Mr. Thakker submitted that assuming for the sake of argument that what is contended by the plaintiffs, that on 13.08.1967, a partnership deed was also executed is right, then also the same is unregistered one and, therefore, the Court is not required to take note of it. He submitted that, in the said document, it is stated that, “…………. Mulji Lakha will be the sole manager of partnership assets and it will be his absolute authority, either to divide the said land into subplot or to sale the said land at his discretion…….”. . The learned senior counsel further submitted that, in the alternative, it is required to be appreciated that as per the said document, the partners were to share profit in an agreed proportion. That being so, at the best, plaintiffs could have sought for only for ‘their share’ in the profit and their prayer for ‘injunction’ is not tenable in law. He submitted that in this case, plaintiffs cannot claim for ‘specific performance’ , therefore, on that ground alone, the question of grant of an injunction does not arise.
6.3 The learned senior counsel clarified that, he is making this submission without prejudice to his other contentions, viz. the property was mutated in the name of deceased Shri Mulji Lakha way back in the year 1967; that he was the absolute owner of the property; that the plaintiffs did not raise any objection to the claim of Late Shri Mulji Lakha of being an absolute owner of the property. He submitted that thus, the plaintiff’s claim is liable to be rejected, either on the ground of acquisition or delay and it is only after 13.12.2000, when his clients sold some part of the land in question in favour of defendant Nos. 9 to 12 (appellants of Appeal from Order No. 294 of 2002), that they have come in action, which is grossly delayed one by any standard. He submitted that in that view of the matter, even on the ground of equity, the relief was required to be denied to the plaintiffs.
6.4. Learned senior counsel, Mr. Thakker next submitted that besides, the learned Judge has missed another very important aspect of the matter viz. the document, which is alleged to have been executed on 13.08.1967 is hit by the provisions of Section 33 of the Indian Contracts Act, 1872 and Section 17 of the Registration Act, 1908, as, at the relevant time, the land in question was agricultural land and the same could not have been purchased by anybody else then an agriculturist, because Section 54 of the Saurashtra Gharkhed Ordinance prohibits the transfer of an agricultural land to a nonagriculturist. He submitted that in that view of the matter, even if the case of the plaintiffs is believed, the object of the partnership was unlawful, as, the plaintiffs wanted to do something indirectly, which they could not have done directly. He submitted that, even on this ground, the claim of the plaintiffs must fail and the learned Judge ought to have refused the reliefs prayed for in Exh.5.
6.5. Learned senior counsel, Mr. Thakker submitted that, there is yet another hurdle, which the plaintiffs will be required to overcome before they could establish their claim. He submitted that even as per the say of the plaintiffs, the land was purchased in the name of Mulji Lakha (deceased) by the partners of a partnership firm, the transaction is hit by the Provisions of Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988. He submitted that Sections 3 and 4 of the Act inter alia prohibits a suit or claim or an action to enforce any right in respect of any property, held Benami, against the person on whose name, property is held or against any other person. He submitted that, in light of this, the case of the plaintiffs has to fail and that being so, prayer of the plaintiffs for injunction was required to be turned down.
7. The learned senior advocate, Mr. M.D.Pandya with learned advocate, Mr. Mehul H.Rathod, appearing for the appellants in Appeal from Order No. 294 of 2002 submitted that the land in question was never, (A) “common stock” of the partnership firm. He also submitted that the appellants and defendant Nos. 9 to 12 are the bonafide purchasers of property by registered sale deed for value without notice. He submitted that in the revenue records, the name of deceased Mulji Lakha was shown as an ‘absolute owner’, right from 1967 till 1992 (as he died in 1992). Thereafter, the names of the defendant Nos. 1 to 8 were entered as owners on the basis of ‘Letter of Administration’, granted by the competent Court. That being so, now on a fanciful claim of the plaintiffs, his clients cannot be restrained from enjoying the property, which they have purchased from the lawful owner of the property for adequate consideration, without there being any apparent flaw in the title of the vendors. Mr. M.D.Pandya, the learned advocate submitted that his submissions are in addition to the submissions made by learned senior counsel in Appeal from Order No. 295 of 2002, as the interest of the appellants there and his clients are not conflicting.
7.1. Mr. M.D.Pandya, the learned senior advocate for the appellants (in Appeal from Order No. 294/2002) defendant Nos. 9 to 12, submitted that, even at the cost of repetition, he will like to reiterate that, assuming for the sake of argument that the plaintiffs remotely have any case, though for establishing it, the plaintiffs will have to over come so many hurdles before they succeed in establishing their claim, put forward in the suit, the plaintiffs are entitled only for their share, in the profit from the sale proceeds of the land in question. He strenuously argued that in that view of the matter, there was no reason for the learned Judge to grant the injunction. Mr. Pandya, the learned senior advocate submitted that, the so called agreement, was entered into only with a view to defeat the law. He submitted that the fact that the other partners, except deceased Mulji Lakha were nonagricultarist, they could not have purchased the land in question, lawfully in light of the bar imposed by Section 54 of Saurashtra Gharkhed Ordinance. He submitted that the alleged partnership deed (at mark 4/1) clearly provides that the partnership is created only for the subject land, that means it is created only with a view to circumvent the aforesaid prohibitory provision, whereby the partnership is rendered unlawful.
7.2. Learned senior advocate, Mr. Pandya referred to Section 23 of the Indian Contract Act, 1872, which reads as under:
“What considerations and objects are lawful and what not – The consideration or object of an agreement is lawful unless – it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law; Or……..”
He submitted that in this case, as the partnership formed was only with a view to overcome the restrictions imposed by Section 54 of the Ordinance, the same is unlawful and the plaintiffs’ case based on it must fail. He referred to relevant grounds, in this regard from the Appeal Memo.
7.3. Learned senior advocate, Mr. M.D.Pandya submitted that his clients are the bonafide purchasers for value without notice. They had made reasonable inquiries in respect of the ownership of the land in question with the Office of the Registrar as well as the Revenue Officers. At no place, the name, either of the firm or its partners were entered into. He submitted that, his clients purchased the land from the heirs and legal representatives of Mulji Lakha, who in turn, had purchased the land from heirs and legal representatives of one Shri Vasram Pratapbhai in the year 1967. He emphatically submitted that, even the N.A. permission was granted in the name of Shri Mulji Lakha, in his individual capacity. He submitted that, his clients had purchased the land by registered sale deeds dated 13.12.2000, whereas, the suit is filed on 13.05.2002, without any explanation for belated action.
7.4. Learned senior advocate, Mr. Pandya submitted that, the plaintiffs – so-called partnership firm did not care to get either its or its partners’ name entered in the revenue records, even after the land was converted into nonagricultural land. The learned advocate also referred to the findings recorded by the ULC Authority, in this regard, which are to the effect that:
“the firm is created only for the purpose of saving the land from the Provisions of ULC Act.”
He, however, submitted that, the ULC proceedings are not admitted, either by his clients or the heirs and legal representatives of deceased Mulji Lakha.
7.5. Learned senior advocate, in support of his contentions relied upon the following decisions:
1. AIR, 1990, Kerala, 324.
2. AIR, 1994, Allahbad, 298
3. AIR, 1989, Kerala, 317.
4. AIR, 1995, Allahbad, 298.
7.6. Learned senior advocate, Mr. Pandya, in the alternative, submitted that, even if the so-called firm, M/s.Mulji Lakha & Co. had come into existence, the same stood dissolved on the death of Shri Mulji Lakha, in view of Section 42 of the Indian Partnership Act, 1932.
7.7. The learned senior advocate submitted that, the order passed by the learned Judge, injuncting his clients not only from selling, transferring, assigning plot No. 32 of revenue survey No. 110 of village Madhapar, admeasuring 924-1 sq. mtrs, but, also from putting up any construction is erroneous and requires to be quashed and set aside.
8. Mr. Mihir Joshi, the learned advocate, appearing with Mr. Vimal Patel for respondent No. 1 in both these appeals with all vehemence at his command, supported the order passed by the learned Judge.
8.1 He referred to various documents. First he referred to a form filed under Sub-section 1 of Section 6 of the ULC Act, (produced at mark 4/9), wherein it is mentioned that the form is filed by Mulji Lakha, in Clause No. 1 and No. 2, it is mentioned that it is the form filed for a partnership firm. He submitted that in the Schedule, attached to that form, the land in question is mentioned as the land, for which the form is filed. He submitted that, in the said form, names of partners are mentioned at on internal page 5. He submitted that the form was filed on 12.08.1976.
8.2 Next he relied on an order passed by Dy. Collector, (ULC), dated 24.11.1983 ( mark 4/10). He pointed out that, in paragraph 5(2), the demand made in the form (filed for the partnership firm), to allow individual partner to hold the land is rejected, because under Section 2(G)(I), a ‘partnership firm’ is ‘an individual’ and, therefore, it can hold the land. The learned advocate next relied upon the memo of Special Civil Application No. 6722 of 1989 (at mark 4/11). This Special Civil Application was affirmed by said Shri Patel Mulji Lakhabhai. The learned advocate pointed out that the petition was filed in the name of partnership firm M/s.Mulji Lakha & Co. and in paragraph 2, it is mentioned that:
“the petitioner owns land of survey No. 110 of village Madhapar of Tal.Rajkot, purchased in the name of its partner, Patel Mulji Lakhabhai by registered sale deed dated 13.09.1969 and it has been permitted to be used for the N.A., use of residence and the Sanad in form ‘M’ was issued accordingly.”
8.3. The learned advocate also relied upon the partnership deed, (which is at mark 4/1), wherein Mulji Lakha is shown to be one of the partners, having share of 25 paisa, alongwith him are other six partners. The learned advocate pointed out some of the Clauses of the said deed. He also relied on a partnership deed of the year 1975, (mark 4/2), wherein it is stated that:
“persons mentioned at serial Nos. 1 to 7 were doing the business since 13.08.1967 in the name and style of M/s.Mulji Lakha & Co.”
This document of the year 1975 was executed to add other persons, whose names are mentioned at serial Nos. 8 to 13 in the partnership. The learned advocate submitted that, from these documents, it is clear that, a partnership firm was in existence and that the land was purchased in the name of ‘Mulji Lakha’, who was one of the partner. He submitted that, abstracts from the ‘Register of Firms’ are also produced. It can be noticed therefrom that, the firm was initially registered on 12.11.1969 and thereafter, on 04.05.2002, the names of new partners, who are stated to have been inducted on 01.01.1975, were added, on the basis of an application dated 04.05.2002. (abstracts are produced at mark 4/3).
8.4. The learned advocate also relied upon a document (mark 42/15) – a form filled in under Sub-section 1 of Section 6 of ULC Act. This form is filed for the family. The learned advocate submitted that, in this form, said Shri Mulji Lakha had mentioned the land in question, as ‘partnership property’. It is also stated in the form that, the same should be taken into consideration, only to the extent of his share in the partnership and not in its entirety. The learned advocate also referred to a document (mark 42/1) – the plaint of Special Civil Suit No. 129 of 1996, filed by one Smt.Dinaben Bharatbhai Padmani, claiming her share in the properties of deceased Mulji Lakha. The aforesaid land is referred to at item No. 6 in the list of such properties and it is mentioned therein that, in that land land, the deceased had 5 paisa share as a partner. The learned advocate, then referred to a deed – ‘Power of Attorney’, executed by the heirs of the deceased Mulji Lakha, six in number, who constituted one Babulal Keshavji Patel as their ‘Power of Attorney holder’ for dealing with their immovable properties, mentioned in the said deed – of Power of Attorney. Where item No.G, is the land in question and there also, it is mentioned that deceased Mulji Lakha had 5 paisa share as a partner in the said land. The learned advocate, next referred to ‘written statement’ filed by the defendants in Special Civil Suit No. 129 of 1996, (mark 42/6), wherein they have not denied the fact that in the land bearing survey No. 110 of village Madhapar, the deceased Mulji Lakha had only 5 paisa share as a partner. The learned advocate, submitted that in view of the aforesaid facts, it is not open for the heirs and legal representatives of the deceased Mulji Lakha to contend that Mulji Lakha was the owner of the entire suit property in his personal capacity. He submitted that from the aforesaid documents, it is more than evident that Mulji Lakha had only limited interest, to the extent of his share in the partnership. The learned advocate also pointed out the contents of the document (mark 48/1), which is a letter written by the Office of the District Panchayat to the Taluka Development Officer, wherein it is mentioned that:
“a representation is received which should be looked into and after examining and after considering the same in accordance with law, applicant be replied with an intimation to the Office of District Panchayat.”
A copy of the representation is also enclosed with that letter and therein it is specifically mentioned that:
“the land bearing survey No. 110 of village Madhapar is of partnership firm – M/s.Mulji Lakha and that the same was purchased in the name of Mulji Lakha as a partner of partnership firm by a registered sale deed dated 13.09.1967 and that Mulji Lakha had only 5 paisa share in the said property.”
In this representation, names of other twelve partners and their share in the property is set out, which establishes the case of the plaintiffs beyond any doubt.
8.5. The learned advocate next referred to a document (mark 42/16) – a communication, addressed by the heirs of deceased Mulji Lakha to the Additional Collector, (ULC). There also, the land in question is referred to and it is stated that:
“land admeasuring 741-67 sq. mtrs. from survey No. 110 of village Madhapar is the subject matter and for which exemption application under Section 20 of ULC Act was made, which is rejected on 22.05.1989, which we want to surrender to the Government.”
8.6. The learned advocate next referred to an order, passed by this Court, in Special Civil Application No. 6722 of 1989 (mark 4/13), which is already referred to, hereinabove.
8.7. The learned advocate then, referred to a document (mark 42/11), plaint of Special Civil Suit No. 12 of 2000 filed by Shri Babubhai Keshavjibhai Patel for partition of joint Hindu Family property. What is important is that, there the land in question is not mentioned as one of the properties of Joint Hindu Family.
8.8. The learned advocate next referred to a document (mark 48/3), which is a Misc.Civil Application No. 482 of 2000, filed for getting ‘Heirship Certificate’. In this application, all the properties of the deceased are mentioned, for which the ‘Heirship Certificate’ is sought for, but then, the property in question is not mentioned. 8.9. The learned advocate next relied upon the document (mark 47/1), which is another deed of ‘Power of Attorney’, under this deed, one Shri Pareshbhai Bachubhai Sagani is stated to be the ‘Power of Attorney holder’ of the heirs and legal representatives of the deceased, seven in number. The learned advocate submitted that, this deed, is dated 17.11.2000. For the first time in this deed, the heirs and legal representatives of the deceased have claimed that, the land bearing survey No. 110 of village Madhapar, is of the absolute ownership of the deceased.
8.10. The learned advocate submitted that, despite this voluminous record, suggesting to the contrary, the heirs and legal representatives of the deceased Mulji Lakha are claiming to be to the ‘owners’ of the suit land. The learned advocate submitted that it is more than clear that the suit land was purchased by the partnership firm in the name of the deceased by a sale deed dated 13.08.1967 and the said land was treated to be the property of the partnership firm by all concern, for all purposes, at all the time, more so, by the present appellants of Appeal from Order No. 295 of 2002. He submitted that, the ‘partnership deed’, ‘abstracts from the Register of Firms’ are such, which cannot be denied, even if the appellants want to do that. He submitted that the ‘partnership’ was ‘at will’ and an entry in the Register of Firms was made on 12.11.1969. Thereafter, six new partners were added on 01.01.1975. An application for recording the same was, however, made on 04.05.2002, but then once it is recorded, it is effective from 01.01.1975. The learned advocate submitted that, though in Section 42 of the Indian Partnership Act, 1932 it is provided that; on happening of certain contigencies, a firm stands dissolved.
but then the opening part of the Section is:
“Subject of contract between the partners….’ The learned advocate submitted, unless it is proved that, there was no contract between the partners, it cannot be urged that, the ‘firm’ was dissolved. He submitted that, therefore, the existence of the partnership firm cannot be brought under question. The learned advocate submitted that, N.A – use, nonagricultural – use permission was granted by the District Development Officer by order dated 11.02.1969. In view of that, it was possible for the firm to hold the land in question, because after grant of N.A. use permission, the restrictions under Section 54 of Saurashtra Gharkhed Ordinance ceased to operate/apply to the land in question. He submitted that, ‘the intention of the parties’ is reflected in another deed of partnership, executed on 01.09.1975 (mark 4/2), but was made effective from 01.01.1975. In this document also, the land in question is mentioned in the ‘object Clause’ of the partnership – deed, with alteration of ratio. The learned advocate, in support of his submissions, referred to and relied upon the following decisions:
1. 1935, GLR, 1168
2. 1995 (2), GLR, 1369
3. 1999 (3), GLR, 1887
4. AIR, 1995, Supreme Court, 2372
5. 1983 (2), GLR, 161
6. 1993, Kalkatta, 70
7. 1996 (7), SCC, 55
8. 1959, Rajasthan, 140
9. 1966, Supreme Court, 24
8.11. The learned advocate submitted that, the learned Judge has, rightly granted Exh.5 application, restraining the defendants, as the immovable property is involved. The learned advocate submitted that all the contentions which are raised on behalf of the appellants can be and will be taken care of at the time of trial of the suit. It is only during the pendency of the suit, that the learned Judge with a view to avoid multiplicity of proceedings, further complications and to see that the rights of other parties are not created by sale, transfer or assignment of the suit property, has thought it fit to grant relief therefore, these Appeal from Orders are required to be dismissed and the reliefs granted should be allowed to operate till the disposal of the suit.
9. The ‘fact and situation’, which emerges from the documents referred to and relied upon by both the parties is that, ‘on 13.08.1967, the land was purchased in the name of deceased Mulji Lakha and on that vary day, a partnership deed was executed.’ The fact cannot be denied that, the land was required to be purchased in the name of deceased Mulji Lakha only, with a view to over reach the restrictions of Section 54 of the Saurashtra Gharkhed Ordinance, which prohibits the transfer of an agricultural land to a nonagricultarist. It is equally true that, the partnership firm could not have purchased the land in its name. The aspects which arise for the consideration of the Court is, ‘ the effect of conversion of land in question into a nonagricultural land, in the year 1969 and the effect of Benami Transactions (Prohibition) Act, 1988.’ There is voluminous record, to show that, the land in question was treated to be the property of partnership firm by the heirs and legal representatives of the deceased Mulji Lakha. All these aspects will be considered and answered by the learned Judge after full fledge trial.
10. At this stage, this Court is required to consider as to whether the learned Judge is right in granting an order of injunction, restraining the appellants, qua their respective properties. It will be appropriate to refer to the partnership deed, without deciding the issue of its legality and validity. It is specifically provided in the partnership deed that the partnership was limited for this single transaction of land being survey No. 1100 of village Madhapar (Clause 4 of the deed), from amongst the partners, Shri Mujli Lakha, Shri Jayant Chotalal and Shri Ramkuvar Bhagvanbhai Shah through its Power of Attorney holder Shri Pravinbhai Jaggannathbhai were to manage the affairs of the firm and the acts done by them were to be binding to all partners. The management of affairs was to be done jointly by all the aforesaid partners which included, ‘to get the land converted into N.A.’, ‘to get the sale deed register in the name of firm’ or ‘in the individual names of the partners’ incurring any expenditure, as may be decided by the aforesaid administrators, exercising their discretion. What follows is important. “In Clause 14 of the deed it is provided that on the land being converted into nonagricultural land, on plans being approved, the plots will be distributed with the consent of the partners by draw or at the discretion of the administrators, they will be able to sale the land at any price and that will be binding to all the partners.” Subsequently, another partnership deed was executed on 01.09.1975, making it effective from 01.01.1975, wherein it is specifically mentioned that ‘the partnership is at will’ and that the object of the partnership firm is, ‘to purchase the land in Rajkot Taluka’ and ‘to sell such land or put up construction on such land and sell that.’ At present partnership firm has purchased land bearing survey No. 110 of village Madhapar of Tal.Rajkot in the name of Mulji Lakha, which may be sold or construction may be put up on that land and sell that. For the present, the only object of the partnership is, dealing with that sole land and after the sell of that land, the object of the partnership firm will stand fulfilled. Thus, it is clear from the aforesaid two documents that the only object of the partnership was to deal with the land in question and to sell the same, either as it is or after putting up construction. In that view of the matter, there is no question of any ‘specific performance’ being granted in favour of the plaintiffs. If at all, the plaintiffs succeeds in the suit after over coming the difficulties narrated by the learned advocate appearing for the appellants, the plaintiffs will be entitled for the share in profit only. There is nothing which warrants ‘specific performance’ in favour of the plaintiffs.
11. This Court is of the considered opinion that if no injunction is granted, no prejudice much less an irreparable loss is going to be caused to the plaintiffs and, therefore, the injunction granted by the learned Judge is to be vacated. Accordingly, these Appeal from Orders are allowed and the order passed by the learned Judge, granting Exh.5 application in Special Civil Suit No. 136 of 2002 is hereby vacated. 12. At this juncture, Mr. Vimal M.Patel, learned advocate for the respondents, original plaintiffs prays that the stay, which was granted by the learned Judge of the trial Court is operating in favour of the plaintiffs, which is vacated by this order, be continued for a further period of four weeks.
13. Mr. Thakkar, learned advocate for M/s. Thakkar Associates for the appellants, objects to the same.
14. The fact that the stay, which was granted by the learned Judge, has operated all this time, it is deemed fit to continue the same for a period of four weeks.
15. As the Appeal from Orders are disposed of, no orders in Civil Applications.