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AO/248/2008 13/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 248 of 2008
With
CIVIL
APPLICATION No. 8448 of 2008
In
APPEAL
FROM ORDER No. 248 of 2008
With
APPEAL
FROM ORDER No. 249 of 2008
With
CIVIL
APPLICATION No. 8467 of 2008
In
APPEAL
FROM ORDER No. 249 of 2008
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 ?
=========================================================
BHARTIBEN
ATULKUMAR PATEL - Appellant(s)
Versus
KALPANABEN
JITENDRA PATEL D/O DECD. CHHOTALAL D PATEL & 3 - Respondent(s)
=========================================================
Appearance
:
MR
PY DIVYESHVAR for
Appellant(s) : 1,
Mr. D. F. Amin for MR DHAVAL M BAROT for
Respondent(s) : 1,
None for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 17/09/2008
CAV
JUDGMENT
As
both these Appeal from Orders arise out of the same order passed by
the learned trial Court, they are being disposed of by this common
order.
2. Appeal
from Order No.248 of 2008 is filed by the appellant-original
defendant No.1 and Appeal from Order No.249 of 2008 is filed by the
original defendant Nos.2 and 3, challenging the order passed by the
learned 12th Additional Senior Civil Judge, Vadodara dated
13th May, 2008 below Exh.5 in Special Civil Suit No.256 of
2007 alongwith the application Exh.5 directing the defendants to
maintain status-quo with respect to Plot No.24 of Urmi Society,
Productivity Road, Alkapuri, Vadodara.
3. Respondent
No.1-Kalpanaben Jitendra Patel in each of the Appeal from Order and
original plaintiff had instituted Special Civil Suit No.256 of 2007
in the Court of learned Civil Judge, (SD), Vadodara for partition of
the suit property, contending inter-alia that the plaintiff has been
living in United State since quite longtime and original defendant
No.1 is the sister of the plaintiff and she is also the citizen of
United States. However, nowadays most of the time she is living in
India at Ahmedabad. Defendant No.2 is a business entity named as
Vaibhav Corporation and they are engaged in building construction
activity at Vadodara. As per the plaintiff, she and defendant
No.1(appellant of Appeal from Order No.248 of 2008) are the daughters
of deceased ? Chhotabhai Dahyabhai Patel, who was permanently
residing at Ahmedabad and their father had immovable property at
Ahmedabad and Vadodara. One of such properties is Plot No.24 of Urmi
Society, Productivity Road, Alkapuri, Vadodara. The said plot is
ad-measuring 11,544 square feet. Their father-Chhotabhai expired in
the year 1966 at Ahmedabad and he survived by his wife Kantaben and
two daughters i.e. original plaintiff and defendant No.1. He had no
other heirs at the time of death of deceased-Chhotabhai. In the year
1966 original plaintiff was the minor and therefore it was submitted
that all the properties of their father-Chhotabhai were the joint
family property and each had equal share. It is further averred in
the plaint that in spite of that and without any partition amongst
the heirs of deceased-Chootabhai, the original defendant No.1 sold
the property bearing Plot No.24 of Urmi Society, Productivity Road,
Alkapuri, Vadodara in favour of Vaibhav Corporation. It is submitted
that prior thereto, the original plaintiff had served a notice upon
the defendant No.1 and even the public notice was also given and in
spite of that original defendant No.1 sold the property in favour of
defendant Nos.2 and 3 and in spite of public notice defendant Nos.2
and 3 purchased the same. Therefore, the aforesaid suit came to be
filed and in the said suit, the original plaintiff submitted the
application at Exh.5 for interim injunction restraining the defendant
from making any change of any nature and also restraining them from
digging pits, making any construction or making any change in the
nature and in the position of and transferring plot No.24 of Urmi
Society, Productivity Road, Alkapuri, Vadodara and further
restraining them from disturbing rights of co-owners of said plot and
disturbing plaintiff’s legal and joint possession as co-owner in any
manner till final disposal of the suit. Initially, the learned trial
Court passed the ex-parte ad-interim injunction on 25/05/2007
restraining the defendants from making construction work in the suit
property and also further restraining them from transferring the suit
property to any third party and the defendants were directed to
maintain status-quo position in respect of the suit property.
4. Application
Exh.5 was opposed by original defendant No.1 by submitting reply at
Exh.45. It was submitted on behalf of the defendant No.1 that the
name of the defendant No.1 was entered into in the record of the
society vide Resolution dated 02/03/1975 and she has got the absolute
ownership right which was given by their father. It was further
submitted that the said resolution was in the knowledge of the
plaintiff as well as original defendant No.4 (mother) and the said
resolution is not challenged. It was further submitted that
defendant No.1 had sold / transferred her share in the said plot in
favour of defendants Nos.2 and 3 by registered sale-deed dated
14/05/2007.
5. Application
Exh.5 was also opposed by the original defendant Nos.2 and 3 while
submitting the reply at Exh.49 and further submitting that they have
purchased the property in question by registered sale-deed for a sale
consideration of Rs.2.30 Crores and even the same was purchased after
giving public advertisement in local newspaper on 15/10/2006 and
after obtaining title clearance certificate. Therefore, it was
requested to dismiss the application Exh.5 and vacate the ex-parte
interim injunction.
6. The
learned trial Court after considering the submissions made on behalf
of respective parties and prima-facie considering the the fact that
the original plaintiff had a share in the property in question and
the original defendant No.1 had no authority to sale the share of the
plaintiff as well as original defendant No.4, granted application
Exh.5 by directing the defendants to maintain status-quo. Being
aggrieved and dissatisfied with the order passed by the learned trial
Court dated 13/05/2008 below Exh.5 in Special Civil Suit No.256 of
2007, the original defendant No.1 and defendant Nos.2 and 3 have
preferred the present Appeal from Orders.
7. Learned
Advocates appearing on behalf of respective appellants have
vehemently submitted that the learned trial Court has materially
erred in holding that the property in question is a joint family
property and the original plaintiff and defendant No.4 have also
share and they are the co-owners. It is also further submitted that
the learned trial Court has materially erred in not appreciating the
fact that the name of the original defendant No.1 was entered into
register of the society in the year 1975 and since then the said
property was in exclusive possession and in ownership of defendant
No.1 and therefore the plaintiff as well as defendant No.4 had no
share in the property in question. It is also further submitted that
by learned Senior Advocate appearing on behalf of respective
appellants that the learned trial court has not property appreciated
the fact that suit for partition is filed only qua Plot No.24 and not
with respect to any other properties. It is submitted by
Mr.Nanavati, learned Senior Advocate appearing on behalf original
defendant Nos.2 and 3 that they have purchased the property in
question by registered sale-deed on payment of full sale
consideration after obtaining title clearance certificate and after
giving public notice and they are the bona-fide purchasers and
therefore it is requested to allow the appeal from order and vacate
the order of status-quo.
8. On
the other hand, both Appeal from Orders are opposed by Shri D F Amin
and Shri Dhaval Barot, learned Advocates appearing on behalf of
original plaintiff and it is submitted that the property in question
was purchased by deceased-Chhotabhai, the father of the plaintiff and
defendant No.1 and the name of defendant No.1 was got entered into
the register of the society by the defendant No.1, affecting the
rights of the plaintiff as well as defendant No.4. It is submitted
that as rightly observed by the learned trial Court that prima-facie
the plaintiff and the defendant No.4 have also share in the property
in question and therefore the defendant No.1 had no right or
authority to sale and / or transfer their share. Therefore, the
learned trial Court has rightly granted the order of status-quo,
otherwise there will be multiplicity of proceedings and once the
defendant Nos.2 and 3 are permitted to put up the construction and to
change the nature of the property in that case, if the suit is
decreed, it will not be possible to get the decree executed and third
party rights will be created and therefore the learned trial Court
has rightly granted the order of status-quo. By making above
submissions, it is requested to dismiss both the appeal from orders.
9. Heard
the learned Advocates appearing on behalf of respective parties. It
appears that the suit is filed by the plaintiff for partition. It
also appears that the disputed property in question viz., Plot No.24
of Urmi Society, Productivity Road, Alkapuri, Vadodara was purchased
by the father of the original plaintiff and defendant No.1 and
husband of defendant No.4-deceased-Chhotabhai. The said
deceased-Chhotabhai expired in the year 1966. Neither there is a
will in favour of any party nor there is any evidence that there was
a partition amongst the heirs of deceased-Chhotabhai. Hence, the
plaintiff and the defendant No.4 had also share in the disputed
property in question. All the three i.e. plaintiff, defendant Nos.1
and 4 are the co-sharers and therefore unless and until the property
is partitioned, one of the sharer cannot sale the property in
question. Therefore, the original defendant No.1 had no right and /
or authority to sale the entire property in question. It is also
required to be noted that initially the suit was filed for partition,
however, subsequently plaint has been amended and the declaration is
sought that sale-deed executed in favour of defendant Nos.2 and 3 is
not binding upon the plaintiff and original defendant No.4. It is
also required to be noted that the original defendant No.1 ?
herself had filed suit No.1737 of 2007 against the plaintiff and
defendant No.4 claiming that she had 1/3 share in plot No.A/2 Adashya
Appartment. Therefore, with respect to some other property, the very
defendant had claimed that she had 1/3 share share and so far as plot
No.24 is concerned, she claims to be the absolute owner which cannot
be accepted. Therefore, the learned trial Court has rightly held
that defendant No.1 could not have sold the entire property defeating
rights of the plaintiff as well as defendant No.4.
10. Now,
so far as submission made on behalf of defendant Nos.2 and 3 that
they are bona-fide purchasers of the property in question on payment
of sale consideration, it is required to be noted that the power of
attorney holder of the plaintiff served a legal notice upon the
original defendant No.1, Chairman / Secretary of Urmi Society,
Prakashbhai Khatri of Vaibhav Corporation-original defendant Nos.2
and 3 and Sub-Registrar, Vadodara, submitting that if any transaction
is done with the original defendant No.1 with respect to disputed
property and / or any agreement and / or writing with respect to the
property in question with original defendant No.1 defeating the
rights of the plaintiff would be null and void and not binding upon
the plaintiff. The said legal notice is dated 09/04/2007 and in spite
of that the original defendant Nos.2 and 3 have purchased the
property in question by registered sale-deed dated 25/05/2007 only
from original defendant No.1. Thus, when in spite of the aforesaid
notice dated 09/04/2007, defendant Nos.2 and 3 have purchased the
property in question only from defendant No.1 with open eyes, they
cannot be said to be the bona-fide purchasers.
11. Now,
so far as submission made on behalf of defendants No.2 and 3 that
they have given the public notice with respect to title clearance on
15/10/2006, it is to be noted that even thereafter and prior to the
execution of the sale-deed dated 02/05/2007, the power of attorney
holder of the plaintiff had served a notice on 09/04/2007 upon the
original defendant No.1 as well as one Prakashbhai Khatri of Vaibhav
Corporation ? defendant No.3 and therefore as rightly observed by
the learned trial Court, merely because the plaintiff had not
submitted the objection pursuant to the public notice dated
15/102/006, the rights of the plaintiff would not be affected in view
of the subsequent notice dated 09/04/2007.
12. Considering
the above, the learned trial Court has held that there is a
prima-facie case and the balance of convenience is in favour of
plaintiff and if the property in question is permitted to be
transferred and / or defendants are permitted to put up construction
in that case the third party rights will be created and the nature of
the property will be changed and therefore the learned trial Court
has held that if the injunction is not granted then the plaintiff
would suffer irreparable loss.
13. Considering
the above when the learned trial Court has granted application Exh.5,
directing the defendants to maintain status-quo, it cannot be said
that the learned trial Court has committed any error. In the facts
and circumstances of the case, when the property in question is of
the joint ownership of the three i.e. plaintiff, defendant Nos.1 and
4, all have equal share in the property in question and, in spite of
notice when the defendant Nos.2 and 3 have purchased the property
from original defendant No.1 without there being any partition and
interim injunction has been granted, the same is not required to be
interfered with by this Court. During the pendency of the suit, the
defendant Nos.2 and 3 cannot be permitted to put up the construction
and change the nature of the suit property.
14. For
the reasons stated herein above, both the Appeal from Orders fail and
they are required to be dismissed and are accordingly dismissed.
15. In
view of the dismissal of Appeal from Order, no order in Civil
Applications.
16. While
concluding the order, it is required to be observed that looking to
the dispute between the two sisters, this Court tried best to resolve
the dispute amicably but looking to the conduct and attitude of the
husband of defendant No.1, the compromise could not be arrived at.
(M.R.SHAH,
J.)
sompura
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