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AO/315/2007 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 315 of 2007
With
CIVIL
APPLICATION No. 11425 of 2007
In
APPEAL
FROM ORDER No. 315 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
ARJANBHAI
POPATBHAI HAPALIYA & 2 - Appellant(s)
Versus
HARIBHAI
KANJIBHAI THUMAR - Respondent(s)
=====================================================
Appearance :
MR
RUTURAJ NANAVATI for Appellant(s) : 1 - 3.
MR HARIN P RAVAL for
Respondent(s) : 1,
MR MEHUL S SHAH for Respondent(s) : 1,
MR
SURESH M SHAH for Respondent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 28/08/2008
ORAL
JUDGMENT
1. Admit.
Shri Mehul Shah, learned advocate waives service of notice on behalf
of the respondent. With the consent of the learned advocates for the
respective parties, the matter is taken up for final hearing today.
2. Present
Appeal from Order under Order 43 Rule 1 of the Code of Civil
Procedure is filed by the appellants original defendants challenging
the order dated 18.8.2007 passed by the learned 7th Additional Senior
Civil Judge, Rajkot below Exh. 5 in Special Civil Suit No. 57 of 2007
by which the learned trial Court has partly allowed the application
Exh. 5 submitted by the respondent original plaintiff by directing
the appellants-defendants to maintain status quo with respect to the
suit land.
3. Respondent
herein original plaintiff had instituted Special Civil Suit No. 57 of
2007 in the Court of learned Principal Senior Civil Judge, Rajkot for
specific performance of the agreement to sell dated 21.2.2007
executed by the original defendant No.1 with respect to the land
bearing survey No. 431 paiki plot No. 49 admeasuring 332.8 sq.yds. As
per the plaintiff, original defendant No.1 had agreed to sell the
aforesaid property in question vide agreement to sell dated 21.2.2007
for a sale consideration of Rs. 8,75,000/- but as per the plaintiff
he has paid Rs. 2,51,000/- in cash towards part sale consideration
and the defendant No.1 was required to execute the sale deed within
90 days on getting the title clearance certificate. It is submitted
that inspite of the aforesaid agreement to sell in existence the
defendant No.1 sold the suit property in question in favour of the
defendants No.2 and 3 by two different sale deeds by dividing the
land into to portion vide sale deed dated 7.3.2007 and, therefore,
the plaintiff filed the aforesaid suit for specific performance of
the aforesaid agreement to sell dated 21.2.2007 for declaration that
defendants No.2 and 3 have not got any title and that they are
required to execute the sale deed in favour of the plaintiff. In the
said suit, the plaintiff submitted the application Exh. 5 for interim
injunction restraining the defendants more particularly, defendants
No.2 and 3 from transferring / alienating the suit property and / or
restraining them from put up any construction and / or changing the
nature of the suit property till the final disposal of the suit.
After considering the submissions made on behalf of the respective
parties, the learned trial Court vide impugned order dated 18.8.2007
partly allowed the application at Exh. 5 by directing the respective
parties to maintain status quo. Being aggrieved and dissatisfied with
the order passed by the learned trial Court below Exh. 5,
appellants-defendants have preferred the present Appeal from Order.
4. Shri
N.D. Nanavati, learned Senior Advocate appearing for the appellants
has vehemently submitted that the learned trial Court has materially
erred in directing the appellants to maintain status quo with respect
to the suit property. It is submitted that appellants have purchased
the property in question by registered sale deed on payment of full
sale consideration and they are bonafide purchaser and, therefore,
they cannot be restrained from developing the land. It is further
submitted that in fact, the agreement to sell itself is disputed and
the plaintiff has failed to prove the part sale consideration. It is
submitted that when the Satakhat and the consideration has been
disputed the original plaintiff is prima facie required to prove the
payment of part sale consideration as alleged to have been paid at
the time of execution of the agreement to sell. It is submitted that
the appellants No. 1 and 2 have purchased the property in question
for a sale consideration of Rs. 25,11,000/- against the consideration
of Rs. 8,75,000/- mentioned in the alleged agreement to sell dated
21.2.2007. It is submitted that even the appellants have also
obtained necessary permission for construction after getting lay out
plans sanctioned by the Competent Authority. Shri Nanavati, learned
Senior Advocate has relied upon the decision of this Court in the
case of Khimjibhai Harjivanbhai Patadia Vs. Patel Govindbhai
Bhaagvanbhai & Ors. reported in 2006(4) GLR, 3058 and
relying upon the said judgment, it is submitted that when the
execution of the agreement to sell and the consideration in the said
agreement to sell is disputed and the amount is alleged to have been
paid by cash, the persons who claiming right or interest on the
strength of agreement to sell has to prima facie satisfy the Court
with respect to source and the payment of aforesaid amount and,
therefore, when no prima facie evidence is produced, the plaintiff
has failed to prove the consideration. Therefore, it is submitted
that the learned trial Court has committed an error in partly
allowing the application Exh. 5 directing the appellants to maintain
status quo. Shri Nanavati, learned Senior Advocate has submitted that
even appellants are ready and willing to deposit an amount of Rs. 5
lacs to show their bonafides. So that if ultimately any order adverse
to them is passed, in that case, appropriate order can be passed by
the learned trial Court to compensate the plaintiff. By making above
submissions and relying upon the aforesaid decision, it is requested
to allow the present appeal from order by quashing and setting aside
the order passed by the learned trial Court.
5. Appeal
from Order is opposed by Shri Mehul Shah, learned advocate for the
respondent-original plaintiff. It is submitted that there was
agreement to sell in favour of the the plaintiff dated 21.2.2007
executed by the defendant No.1 and at the time of execution of the
agreement to sell an amount of Rs. 2,5,1,000/- was paid towards sale
consideration and subsequently the defendant No. 1 has sold the suit
land in favour of the defendants No. 2 and 3 by dividing the same
into two parts and, therefore, learned trial Court has rightly
granted interim injunction directing the defendants to maintain
status quo. It is submitted that as such with respect to the very
property in question a Civil Suit No. 988 of 1984 was pending and the
defendant has not pointed out even the same to the defendants No. 2
and 3 therefore. it is rightly observed by the learned trial Court
that defendants No. 2 and 3, have not taken due care and diligence
before purchasing the property in question for sale consideration of
huge amount of 25,11,000/-. It is submitted that to avoid any further
multiplicity of proceedings the learned trial Court has rightly
passed the order directing the defendants to maintain status quo. It
is submitted that when the learned trial Court has exercised
discretion judicially, the same is not required to be interfered with
by this Court, therefore, it is requested to dismiss the present
appeal from order.
6. In
reply, Shri Nanavati, learned Senior Advocate appearing for the
appellants has submitted that so far as the suit of 1984 is concerned
original defendant No. 1 is not party to the said suit and even in
the said suit the suit plot is not the subject matter and there was
no injunction against defendant No.1 in the aforesaid suit of 1984.
It is further submitted that appellants No. 1 and 2 have purchased
the property in question after verifying the relevant document.
Therefore, it is requested to allow the present appeal from order.
7. Heard
the learned advocates for the respective parties.
8. At
the outset, it is required to be noted that original plaintiff is
claiming the right on the basis of alleged agreement to sell dated
21.2.2007 and it is the case on behalf of the plaintiff that he has
paid Rs. 2,51,000/- towards sale consideration by cash at the time of
execution of the agreement to sell dated 21.2.2007. It is required to
be noted that agreement to sell as well as alleged sale consideration
has been disputed. Under the circumstances, when the part sale
consideration is alleged to have been paid by cash and when the
agreement to sell as well as consideration has been disputed, it is
for the plaintiff to even prima facie satisfy the Court by producing
books of account, passbook etc,. which the plaintiff has failed to
produce. As held by learned Single Judge in the case of Khimjibhai
Harjivanbhai Patadia (supra)
however in the agreement to sell movable property receipt issuing the
part payment and consideration amount by the purchaser is mentioned
and the said receipt is seriously disputed by the seller plaintiff
has to even produce prima facie evidence to show as to in which
manner he has paid the said part consideration in cash. In the
present case, the plaintiff has not produced anything to show that
whether he has withdrawn the said amount from any bank or he has
borrowed the money from anyone. Therefore, it can be safely presumed
that theory of so-called payment is not at all believable.
9. Appellants
No. 1 and 2 have purchased the property in question for a sale
consideration of Rs. 25,11,000/- by registered sale deed. It is
required to be noted that in the alleged agreement to sell dated
21.2.2007 in favour of the plaintiff the sale consideration is of Rs,
8,75,000/- and against which the sale consideration shown in the
registered sale deed in favour of the appellants No.1 and 2 dated
17.3.2007,the same is of Rs. 25,11,000/- i.e. approximately 17 lacs
more and that too within a period of one month. It is also required
to be noted that even appellants have also obtained the necessary
permission from the competent authority for putting up the
construction on the land in question.
10.
It is an admitted position that the alleged agreement to sell dated
21.2.2007 alleged to have been in favour of the plaintiff is not
registered. Under the circumstances, when the appellant Nos. 1 and 2
have purchased the property in question for sale consideration of Rs.
25,11,000/- by registered sale deed, they are the bonafide purchaser
of the property in question and, therefore, they cannot be restrained
from developing the land and putting up the construction. Under the
circumstances, it appears that learned trial Court has committed an
error in allowing the application Exh. 5 directing the appellants to
maintain status quo. Shri Nanavati, learned Senior Advocate appearing
for the appellants has submitted that appellants are ready and
willing to deposit sum of Rs. 5 lacs in the trial Court to show their
bonafide and it is requested that they may be permitted to develop
the land in question as they have incurred substantial expenses and
have paid the huge amount of Rs. 25,11,000/- towards sale
consideration. Considering the above and more particularly, when the
plaintiff has failed to prima facie satisfy the Court with respect to
the payment of Rs. 2,51,000/- alleged to have been paid towards sale
consideration at the time of execution of the agreement to sell dated
21.2.2007 and on the other hand the appellants No. 1 and 2 are the
bonafide purchaser who have purchased the property in question by
registered sale deed for sale consideration of Rs. 25,11,000/-, the
impugned order passed by the learned trial Court directing the
appellants to maintain status quo is required to be quashed and set
aside.
11. For
the reasons stated above, the Appeal from Order succeeds. The
impugned order dated 18.8.2007 passed by the learned 7th Additional
Senior Civil Judge, Rajkot below Exh. 5 in Special Civil Suit No. 57
of 2007 is hereby quashed and set aside. However, the appellants are
directed to deposit an amount of Rs. 5 lacs with the trial Court on
or before 28.11.2008 to show their bonafide as per the statement made
by the learned Senior Advocate appearing for the appellants and on
such deposit the learned trial Court is directed to invest the same
in Fixed Deposit in any Nationalized Bank initially for a period of 5
years.
CIVIL
APPLICATION NO. 11425 OF 2007
In
view of the order in Appeal from Order, no order in Civil
Application.
(M.R.SHAH,
J.)
kaushik
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