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AO/465/2007 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 465 of 2007
With
CIVIL
APPLICATION No. 15736 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 ?
=====================================================
BHIMJIBHAI
NARSHIBHAI MALAVIYA - Appellant(s)
Versus
MANIBEN
MOHANBHAI PATEL & 35 - Respondent(s)
=====================================================
Appearance :
MR
NM KAPADIA for Appellant(s) : 1,
MR ASHISH M DAGLI for
Respondent(s) : 1 - 30.
- for Respondent(s) : 0.0.0
- for
Respondent(s) : 0.0.0, 0.0.0, 0.0.0, 0.0.0,0.0.0
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 12/11/2008
CAV
JUDGMENT
1. Present
Appeal from Order is filed by the appellant original defendant No. 1
to quash and set aside the impugned order dated 1.11.2007 passed by
the learned 10th Additional Senior Civil Judge, Surat passed below
Exhs. 5 and 64 in Special Civil Suit No. 108 of 2007, by which the
learned trial Court has partly allowed both the applications
submitted by the original plaintiffs by directing the plaintiffs as
well as defendant No.1 to maintain status quo as regards to the title
of the disputed land, which was prevailing on the date of the filing
the suit till final haring of the suit.
2. Respondents
herein original plaintiffs have instituted Special Civil Suit No. 108
of 2007 in the Court of learned Senior Civil Judge, Surat against the
appellant original defendant No.1 for declaration and permanent
injunction and for declaration that the sale deed executed in favour
of the defendant No. 1 dated 25.5.2006 is void. It is the case on
behalf of the plaintiffs that the original plaintiffs No. 1 to 19
have purchased plots by way of registered sale deed, whereas other
plaintiffs have purchased the plots by way of possession receipt.
Dispute is with respect to land bearing revenue Survey No. 20
situated at Pandeshara, Surat, which was originally belonging to the
original defendant No. 4 Ratilal Prabhubhai Patel in the capacity of
land owner and as a power of attorney of other land owners i.e.
original defendant Nos. 2 to 7 sold the suit plots to the plaintiffs
under different sale deed and under possession receipts. Thus,
according to them they became the absolute owner of the plots . As
per the plaintiffs inspite of the above, the original defendant Nos.
2 to 7 sold away the entire land bearing survey No. 20 to the
appellant herein original defendant No.1 vide registered sale deed
dated 25.5.2006 and though the defendants were knowing about the
earlier transaction they executed the sale deed in favour the
defendant No.1 and as the defendant No.4 and others were trying to
disturb the possession, the aforesaid suit came to be filed for the
aforesaid relief. In the said suit the plaintiffs submitted
application for interim injunction at Exh. 5 praying for injunction
restraining the defendants from obstructing the plaintiffs from using
the plots in question and disturbing their possession. The appellant
original defendant No.1 also submitted the application below Exh. 64
praying for injunction that the plaintiffs, their agents and servants
should be restrained from entering into the suit land and further
restrained them from obstructing the appellant-defendant No.1 from
using occupying and enjoying the possession and ownership of the
appellant-defendant No.1 qua the land of Revenue Survey No. 20 of
village Pandesara, Surat. Both the applications came to be heard by
the learned 10th Additional Senior Civil Judge, Surat, who by his
impugned order dated 1.11.2007 partly allowed both the applications
at Exhs. 5 and 64 directing the plaintiffs as well as defendant No. 1
to maintain status quo with respect to title of the disputed land.
Being aggrieved and dissatisfied with the impugned order passed by
the learned trial Court passed below Exhs. 5 and 64, the appellant
herein original defendant No.1 has preferred the present Appeal from
order.
3. Shri
N.M. Kapadia, learned advocate has appeared on behalf of the
appellant-defendant No.1, Shri Dagli, learned advocate has appeared
on behalf of the respondent Nos. 1 to 13 original plaintiffs and Shri
R. J. Goswami, learned advocate has appeared on behalf of the
respondents No. 14 to 36. Shri Kapadia, learned advocate for the
appellant-defendant No.1 has submitted that the learned trial Court
has materially erred in not allowing the application Exh. 64 fully
and in not dismissing the application Exh. 5 fully. It is submitted
that the learned trial Court ought to have appreciated that the
registered sale deed which is relied upon by the plaintiffs No. 1 to
19 are on agricultural land and no N.A. permission has been obtained.
It is submitted that so far as rest of the plaintiffs are concerned
they have no title at all and they claim to be in possession only on
possession receipt which do not confer any right on them. It is
further submitted that as such the learned trial Court has not
believed the prima facie case of the plaintiffs nor has held that the
balance of convenience is in favour of the plaintiffs still the
learned Judge has partly allowed the application Exh. 5. It is
further submitted that as such the learned Judge has answered all the
issues which are relevant and important in favour of the defendant
No. 1 and inspite of that, granted injunction to maintain status quo
which is absolutely illegal and improper. It is submitted that grant
of status quo amounts to grant of injunction, therefore, it is
requested to allow the present appeal from order.
4. Appeal
from Order is opposed by Shri Dagli, learned advocate for the
original plaintiffs. It is submitted that original plaintiffs No. 1
to 19 have purchased the plots by registered sale deed executed by
defendant No. 1 as a owner on his behalf as well as a power of
attorney of them co-owners and other plaintiffs are in possession
pursuant to the possession receipt, the learned trial Court rightly
directed both the parties to maintain status quo, which is just and
proper and considering the equity and to strike the balance and,
therefore, the same is not required to be interfered by this Court.
5. Heard
the learned advocates appearing for the respective parties. On going
through the impugned order, it is crystal clear that there is a
specific findings given by the learned trial Court that the
possession of the disputed land is of defendants and that defendant
No. 1 is in possession of the open land i.e. disputed land. The said
finding is given considering the documentary evidence, revenue
records etc. justifying that the possession of the defendant No.1 has
been confirmed by the defendant No. 2 to 7 since 1990. The aforesaid
specific finding with respect to the possession of the defendant
No.1, original plaintiffs have not challenged the same. Even in para
27, the learned trial Court has specifically held that it is prima
facie proved that (i) Plaintiffs do not prove possession.
(ii)Plaintiffs are not agriculturists.(iii). Disputed land is not
N.A. land (iv) Sale deeds which are executed in favour of various
plaintiffs are against the Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947. (v). The plaintiffs have
misrepresented that suit land is constructed upto plinth level and
there are internal way in disputed property. (vi). The plaintiffs
have not joined other plot holders who have filed appeal before
Revenue Court and that the plaintiffs have also not joined other
purchaser of the disputed land as stated in mark 88/5. The learned
trial Court has also given specific finding that the plaintiffs are
claiming through power of attorney, however the said power of
attorney is ineffective. In para 29, it is specifically held by the
learned trial Court that plaintiffs are not entitled to get
injunction as prayed for. Inspite of the above, the learned trial
Court has granted order of status quo against the appellant-defendant
No.1. It cannot be disputed that grant of status quo tantamount to
granting of injunction. It is also required to be noted that
plaintiffs No. 1 to 19 are claiming on the basisof the sale deed
executed by the defendant No.4 for himself and as a power of attorney
on behalf of the other co-owners. However, it has come on record that
two co-owners have not signed the power of attorney and / or are not
party to the transaction. Considering the above specific findings, it
appears that learned trial Court has committed an error in directing
both the parties to maintain status as regards the title of the
disputed land. It is required to be noted that as such, the learned
trial Court has in the operative portion of the order not stated
anything with respect to the possession. As stated above, there is a
specific finding given by the learned trial Court that the defendant
No.1 is in possession which is not challenged by the original
plaintiffs. Under the circumstances, the impugned order passed by the
learned trial Court deserves to be quashed and set aside, however it
is to be observed that any transaction hereinafter by any of the
parties should be subject to the ultimate outcome of the suit.
6. For
the reasons stated above, Appeal from order succeeded. The impugned
order passed by the learned 10th Additional Senior Civil Judge, Surat
dated 1.11.2007 passed below Exhs. 5 and 64 in Special Civil Suit
No. 108 of 2007, by which the defendants more particularly, defendant
No.1 is directed to maintain status quo is hereby quashed and set
aside with a observations and directions that any transaction
hereinafter by any of the parties inclusive of the defendant No.1
shall be subject to the ultimate outcome of the suit. Appeal from
Order is allowed to the aforesaid extent. There shall be no order as
to costs.
(M.R.SHAH,
J.)
kaushik
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