JUDGMENT
C.L. Pangarkar, J.
1. This is an appeal by the appellants/plaintiffs whose application under Order 13 Rule 1 and 2 was rejected by the trial court.
2. The facts giving rise to this appeal are as under The defendant No. 1 is the real paternal uncle of plaintiffs while defendant No. 2 is their real mother. Defendants No. 3,4 and 5 are the children of defendant No. 1. Plaintiffs’ father Ramchandra and his brother Rambhau i.e. defendant No. 1 were the owners of Khasra Nos. 82, 86/12, 86/14, 79/2, 80/2 and 73/3 of mauza Hajari Pahad. The two brothers namely Ramchandra and Rambhau were holding property jointly till the death of Ramchandra till 1974. After his death, the property is being held jointly by plaintiffs and defendants No. 1 to 5. The plaintiffs submit that they are Hindus and they have 1/10th share in the suit property held jointly by them and defendants No. 1 to 5. The plaintiffs submit that they have learnt that defendants No. 1 and 2, without any authority and Power, have sold the suit property to defendant Nos. 6 to 8 on different dates. It is submitted that defendants No. 1 and 2 have had exclusive right, title or interest in the property and, therefore, they could not sell the said property to defendants No. 6 to 8. The plaintiffs have never authorised defendants No. 1 and 2 to sell such property. It is submitted that, therefore, the sale in favour of defendants No. 6,7 and 8 is void. When the plaintiffs came to know all these illegal transactions, they served notice to the defendants on 6/1/1999, alleging therein that the sale-deeds are not binding on them. The plaintiffs subsequently amended the plaint and contended that they have no knowledge that the property was sold in pursuance of the exemption order passed under the Urban Land Ceiling Act. They also denied that the property originally belongs to Bhagiratibai and that she has bequeathed that property in equal proportion to Ramchandra and Rambhau. They have also even denied that Ramchandra predeceased Bhagirtibai. The plaintiffs even further denied that they had deliberately and mischievously suppressed this fact from the court that the land was subject to the Urban Land Ceiling Act. Some portion of the land has been allotted by the Government being surplus land to defendant No. 9. It is contended that defendant No. 9 is carrying on construction on Khasara No. 82. Said construction is illegal and, therefore, the plaintiffs seek an injunction that defendant No. 9 be restrained from carrying out any construction on the suit property.
3. Defendant No. 9 resisted the application by filing reply to the said application. It is contended at the outset that the suit is not maintainable as the State of Maharashtra is not party to the suit, which has granted the land to the defendants. It is also contended that the suit is barred under Section 164 of the Maharashtra Cooperative Societies Act, since no notice has been given. It is contended that the Divisional Commissioner has allotted the land out of Khasra No. 79/2, 77/3, 82 and 80 out of surplus land on 25/6/2001 on a usual terms and conditions. The Society was put in possession of the said property on 23/7/2002 by the Tahsildar. The Society thereafter paid the charges, which are required to be paid to the Government as well as to the Nagpur Improvement Trust for development. The defendants denied all the allegations which are adverse to them. It is contended that the applications have been filed belatedly and relief on such belated application cannot be granted in favour of the plaintiffs.
4. Similar application was filed by the plaintiffs against defendants No. 1 to 8. That application was rejected with an observation that the construction, if any, would be subject to the decision of the suit. That finding of the lower court as against defendants No. 1 to 8 was also confirmed by this Court. Defendant No. 9 has been added in the year 2006 and the injunction is being claimed against defendant No. 6 now in the year 2006. The learned judge of the lower court after hearing the parties rejected the temporary injunction application. Hence, this appeal.
5. I have heard the learned Counsel for the appellants and the respondents.
6. The court has to always consider the question of prima facie case, balance of convenience and the irreparable loss.
7. It is rather strange that the proof offered by the plaintiffs is contrary to the pleadings. The plaintiffs have specifically pleaded that the land in question jointly belonged to two brothers Ramchandra and Rambhau. When the defendant Nos. 6 to 8 contended that the land was owned by Bhagirtibai and she bequeathed it to Ramchandra and Rambhau, the plaintiffs amended the plaint and denied that it was so bequeathed under the Will. The question, therefore, is whether they now can offer a proof other than what is pleaded and claim ownership on the basis of Will. To my mind, the plaintiffs cannot offer any other proof except to show that Ramchandra and Rambhau were the joint owners and they do not derive title of Will. Instead of doing that, the plaintiffs now have placed on record a copy of the Will, which shows that the property belongs to Bhagirtibai and she bequeathed it in equal proportion to two of her nephews Ramchandra and Rambhau. The 7/12 extracts filed on record shows that the property belongs to Bhagirtibai and the names of Ramchandra and Rambhau, wife and daughter are entered as legatee. There is no other 7/12 extracts showing the independent ownership of these two persons. It is not, in fact, pleaded clearly by the plaintiffs as to how Ramchandra and Rambhau got the property i.e. whether they themselves purchased it or it was left behind by their father. There is no such 7/12 extracts showing that the property was either purchased by Ramchandra and Rambhau together or it was left behind by their father for them. On this simple ground, it must be said that there is, in fact, no prima facie case in favour of the plaintiffs.
8. It was contended that, admittedly, one of the legatees Ramchandra i.e. father of the plaintiffs predeceased Bhagirtibai. If Ramchandra predeceased the testator, Section 106 of the Indian Succession Act would come into play. Section 106 of the Act reads thus.
106. Legacy does not lapse if one of two joint legatees die before testator.-If a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole.
It is thus clear that entire property upon death of Bhagirtibai went to Rambhau, and, Ramchandra got nothing. Since he had admittedly predeceased Bhagirtibai, since he did not get anything, the plaintiffs too do not get anything. They cannot claim independently. It was contended on behalf of the plaintiffs that this fact need not be considered at this stage because none of the parties dispute that the property originally belongs to Bhagirtibai and she left behind that property under Will for Ramchandra and Rambhau. There is no doubt that it is not very much disputed that the said property was left behind by Bhagirtibai under a Well but it cannot be ignored that Ramchandra had predeceased Bhagirtibai. The law has to take its own course and has to be considered. There cannot be estoppal against law. Further more, the defendants strangely had themselves amended the plaint and denied that the property was given under the Will. It was contended that Rambhau . other legatee does not object to such devolution. He may or may not, the position of law is that surviving legatee alone takes full does not change. Therefore, Ramchandra and consequently the plaintiffs do not and did not get any title to the suit property.
9. It appears that both -defendant No. 1-Rambhau and defendant No. 2 . Anusayabai i.e. plaintiff’s mother had filed in 1976 the returns under the Urban Land Ceiling Act. It also appears from the entry in 7/12 extracts at page 26 in the paper-book filed by the appellant that by order dated 9/11/1993, Talegaon Dhabade Scheme was made applicable and by order dated 26/5/1995, 43517 sq.Meters of land was declared as vacant (surplus). Even Talegaon Dhabade Scheme was made applicable in 1993 and large extent of land was declared as surplus, no action was taken by the plaintiffs to see that it should not be so declared and they also have had interest in the land. Defendant No. 1 Rambhau, who is their real uncle had executed Power of Attorney for development etc. in favour of defendant No. 7 and after two years i.e. on 22/9/1992, defendant No. 2 -Anusayabai executed the Power of Attorney. These transactions had taken place way back in 1990 and it is just hard to believe that the plaintiffs did not know of this till 1999 when they filed suit. Anusayabai is the real mother of the plaintiffs and that is why it is impossible to assume that all these years plaintiffs did not know anything of all these transactions and the developments. Anusayabai, defendant No. 2, does not have son and all plaintiffs are daughters. It is, therefore, also difficult to assume that whatever money Anusayabai had received, she would give that money to any other person than the plaintiffs. It is seen from the plaint that the age of plaintiff No. 1 was 31 years and plaintiff No. 4 was 32 yeas in 1999. They were, therefore, in fact born in the year 1967 and 1968. They can be said to have attained majority in 1985-86. In fact, therefore, they could have participated in the land Ceiling Proceedings even from the year 1985-86 but they chose not to. Their mother, as said earlier, had filed a return in 1976 and she knew everything about the land Ceiling proceedings. But all of them kept quiet. This conduct assumes importance in view of the fact that defendants No. 1 and 2 support the case of the plaintiffs. Had the interest of plaintiffs and defendants No. 1 and 2 been adverse, then it could be said that the plaintiffs knew nothing about the transaction. The fact that the defendants support clearly suggest that the plaintiffs and defendant No. 2 had hand-in-glove. Therefore, although defendants No. 1 and 2 executed a Power of Attorney in 1990 and plaintiffs failed to take action shows that the plaintiffs were satisfied with what was being done by defendants No. 1 and 2 was proper and they have no grievance. Either this inference can be drawn and other inference that can be drawn is that the plaintiffs had slept over their rights. The law does not help those who sleep over their rights. Injunction being an equitable relief, the above principle has to be applied.
10. It must be borne in mind further that the plaintiffs’ application as against defendants No. 1 to 8 is rejected and it is only ordered by the court that the construction would be subject to decision of the suit. That decision has been affirmed by the high court. The case against defendant No. 9 is not very much different. Defendant No. 9 is a legatee of land out of surplus land declared by the Government. We have seen that the land was declared surplus long back in 1995, the order, until the plaintiffs carried out the amendment to the plaint was not challenged. It is sought to be challenged now in the year 2006 i.e. almost after eleven years. This surplus land was allotted in the year 2002 and even possession was delivered in 2002. It is again difficult to assume that the plaintiffs who instituted the suit in 1991 would not know of such allotment to defendant No. 9 in 2002. Even though the order was passed in 2002 and possession was taken in 2002, plaintiffs again kept quiet for four years and filed an application for injunction on 13/4/2006. This again shows that the plaintiffs again did not come before the court promptly but slept over it for period of four years. It is not disputed, in fact, as can be seen from the pleadings that the construction on the said plot has already been commenced. Shri Bhangade, the learned Counsel for the respondents, contended that more than four stories have already been constructed. In fact, therefore, this shows acquisance on the part of the plaintiffs and where there is an acquisance such a person is not entitled to discretionary relief of injunction.
11. It appears that none of the order passed by the Urban Land Ceiling Authority is challenged before any competent authority or the court. Although Urban Land Ceiling Authority is said to be made party to the suit, it appears under the Scheme that an appeal to competent authority is provided. In fact, under the Scheme of the Urban Land Ceiling Act, a surplus land is deemed to be acquired by the Government and Government can allot it. Until, therefore, it is shown that both orders are under challenge, the plaintiffs would not be entitled to claim any relief against defendant No. 9. The Lordship of the Supreme Court have made following observations in the case (Gujarat Bottling Co. Ltd. v. Coca Cola Co.)
47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings.
12. We have seen that conduct of the plaintiffs is not free from blame, in as much as, they did not take any action whatsoever against any of the parties for years together. The ratio in the Gujarat Bottling case can squarely be applied to the case in hand.
13. The learned Counsel for respondents No. 1 and 2 had placed certain rulings before me. By judgment reported in 2006 (6) All MR 171 (Sunil Shinde v. State of Maharashtra), this Court had appointed one-man-Commission to enquire into the irregularities in the Urban Land Ceiling Cases. This ruling has no bearing on the case in hand. There may be several irregularities but this Court has nothing to do with it until those orders are set aside by the Government. It was contended that defendant No. 9 is bound to maintain the status quo with regard to the suit property and should not change the nature of the property. Reliance was placed in a case reported in 2005 SC 104 (Maharwal Khewaji Trust v. Baldev Dass). The observations are as follows
10. Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant’s claim being found baseless u ultimately, it is alway9s open to the respondent to claim damages, or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial Court is restored.
14. In the instant case more than four stories are already constructed. We have seen that the plaintiffs have no prima facie case and they have slept over their rights. They have, in fact, acquised by allowing the construction to go up to the height of four stories. In such circumstances, the ratio of this case cannot be applied to the case in hand. The balance of convenience cannot lie in favour of the plaintiffs, since they have not taken any action with regard to the Urban Land Ceiling Cases. I agree with the finding of the lower court that plaintiffs have failed to make out the prima facie case and there is no substance in the appeal. It is accordingly dismissed.