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AO/188/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 188 of 2010
With
CIVIL
APPLICATION No. 6808 of 2010
In
APPEAL FROM ORDER No. 188 of 2010
=========================================================
ABDULRAHIM
JAANMOHAMMED SHAIKH - Appellant(s)
Versus
PIRKHAN
ASGARALI TINWALA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SATYAJIT SEN for
Appellant(s) : 1,
NOTICE NOT RECD BACK for Respondent(s) : 1,
MR
HARNISH V DARJI for Respondent(s) : 2 - 3.
MR EJAZ M QURESHI for
Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/02/2011
ORAL
ORDER
1.0 This
Appeal From Order is preferred challenging the order dated 16.03.2010
passed by the learned Chamber Judge, City Civil Court, Ahmedabad in
Notice of Motion in Civil Suit No. 1759 of 2009 whereby the Notice of
Motion preferred by the original plaintiff came to be rejected.
2.0 The
facts of the case are that appellant- original plaintiff filed suit
being Civil Suit No. 1759 of 2009 for specific performance of the
contract in respect of land bearing City Survey No. 3315 of Taluka
City ward – Dariapur, District Sub District: Ahmedabad
admeasuring 800 square yards with construction thereon. The
appellant-plaintiff has challenged sale deed executed by the
defendant No. 1 in favour of defendants Nos. 2 and 3 conveying the
property in question to respondent Nos. 2 and 3. In the notice of
motion, Exh. 6 and 7, the appellant-plaintiff has sought a temporary
injunction against the respondent Nos. 2 and 3- defendant Nos. 2 and
3 their servants and agents restraining them from transferring,
assigning, conveying or parting with the possession or encumbering
upon the suit property till final disposal of the suit. The Notice of
Motion Exh. 6 and 7 came to be rejected vide order dated 16.03.2010
which is challenged by preferring the present appeal from order.
3.0 As
a result of hearing and perusal of the documents on record, it is
found that suit filed by the appellant-original plaintiff is time
barred. It is also found that the appellant-original plaintiff has
not taken proper care before purchasing the property in question. As
the respondent Nos. 2 and 3 were not aware about the transaction
between the appellant and the respondent No.1, the respondent Nos. 2
and 3 are bonafide purchasers of the suit land in question. Even if
the respondent No. 1 does not inform the respondent Nos. 2 and 3
about agreement to sell, it cannot be said that respondent Nos. 2 and
3 are not bonafide purchasers for value without notice. Since the
respondent Nos. 2 and 3 have become the owners of the suit property
and unless there is strong reason, they cannot be restrained from
exercising their rights as owners. There is sale-deed executed in
favour of respondent Nos. 2 and 3. Therefore, prima facie, the
appellant-plaintiff has no right to proceed against respondent Nos. 2
and 3. I am in complete agreement with the view taken by the court
below. It is made clear that the observations made in the order in
Exh. 5 application are tentative subject to final evidence by both
the sides. No interference is called for. Appeal from Order stands
disposed of. Notice is discharged with no order as to costs.
4.0 In
view of disposal of Appeal From Order, Civil Application does not
survive and the same stands disposed of accordingly.
(K.S.JHAVERI,
J.)
niru*
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