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AO/85/2008 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 85 of 2008
=====================================================
KARTIKBHAI
JASHUBHAI PATEL - Appellant(s)
Versus
RUBIBEN
WD/O RAMAJI VARVAJI & 10 - Respondent(s)
=====================================================
Appearance
:
MR HARIN P RAVAL for
Appellant(s) : 1,
MR. DEVANG NANAVITY FOR Respondent No. 8 & 9
None
for Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,
1.2.7, 1.2., 1.2.,1.2.10 - 3, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5,
3.2.6, 3.2.7, 3.2.,3.2. - 7, - 11.
- for Respondent(s) : 0.0.0
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/10/2008
ORAL
ORDER
1. Present
Appeal from Order is filed by the appellant original plaintiff
challenging the impugned order passed by the learned 2nd Additional
Senior Civil Judge, Ahmedabad Rural dated 3.12.2007 passed below Exh.
5 in Special Civil Suit No. 50 of 2007, by which the learned trial
Court has dismissed the said application Exh. 5.
2. Appellant
original plaintiff had instituted Special Civil Suit No. 50 of 2007
in the Court of learned Principal Civil Judge (S.D.), Ahmedabad Rural
for specific performance of deed dated 23.5.1991 as well as for
declaration that the agreement dated 13.2.1992 regarding cancellation
of agreement to sell is illegal and void ab-initio. The
appellant-plaintiff has also prayed for permanent injunction
restraining the defendants from selling, assigning or transferring
the suit property to any third party. In the said suit the
appellant-plaintiff filed application for interim injunction below
Exh. 5 restraining the defendants their agents and servants from
transferring/ alienating the suit land and /or putting up any
construction on the suit land. Considering the fact that the suit is
filed after a period of 16 years of the Satakhat and after 15 years
of cancellation of the agreement to sale and that in between there
are so many transactions and the last transaction is in favour of
defendant Nos. 8 & 9, the learned trial Court rejected the
application Exh. 5. Being aggrieved and dissatisfied with the order
passed by the learned trial Court passed below Exh 5 dismissing the
same, the appellant-plaintiff has preferred the present Appeal from
Order.
3. Shri
Harin Raval, learned advocate appearing for the appellant-plaintiff
has vehemently submitted that the learned trial Court has materially
erred in dismissing the application Exh. 5 when the suit was filed
for specific performance of the agreement to sell. It is submitted
that the learned trial Court ought to have appreciated that on the
documents pertaining to cancellation of agreement to sale dated
13.2.1992, did not bear the signature of the plaintiff and the said
agreement was forged and concocted. He has also further submitted
that the learned trial Court has erred in misreading and
misconstruing the facts on record. It is submitted that the learned
trial Court ought to have appreciated that the plaintiff had paid
consideration of Rs. 2 lacs and that as per the agreement to sale the
defendants No. 1 to 4 were responsible for clearing the title of the
suit land and it was the duty of the defendants No. 1 to 4 to obtain
title clearance certificate. As the defendant Nos. 1 to 4 failed and
neglected to obtain title clearance certificate of the suit land and
they further attempted and in fact transferred the suit land to the
third party, the plaintiff was constrained to file the aforesaid suit
for specific performance of the agreement to sale. Therefore,
considering above and with a view to see that further third party
rights are not created, the learned trial Court ought to have allowed
Exh. 5 by further restraining the defendants from putting up the
construction on the suit land. Therefore, it is requested to allow
the present Appeal from Order.
4. Appeal
from Order is opposed by Shri Devang Nanavati, learned advocate
appearing for the respondent-defendant Nos. 8 and 9. It is submitted
by him that defendants No. 8 & 9 are the bonafide purchaser of
the land in question, which they have purchased from original
defendants No. 5 to 7. It is submitted that considering the fact that
suit has been filed after a period of 16 years and in between there
are so many transactions, the learned trial Court has rightly
dismissed the application Exh.5. He has relied upon the decision of
the Hon’ble Supreme Court in the case of Mandali Ranganna &
Ors. etc. Vs. T. Ramachandra & Ors reported in AIR 2008
SC, 2291 therefore, it is requested to dismiss the present Appeal
from Order.
5. Heard
the learned advocates for the respective parties.
6. At
the outset, it is required to be noted that the appellant-plaintiff
has filed the suit for specific performance of the agreement to sell
dated 23.5.1991 in the year 2007 after a period of 16 years. It
appears that in the year 1992 itself the said agreement to sell has
been cancelled. The original defendants No. 1 to 4 have sold the suit
land to various persons, more particularly, defendants No. 5 to 7 by
registered sale deed and thereafter in turn the said defendants No. 5
to 7 have sold the different plots to defendants No. 8 and 9 by
registered sale deed. The original land owners have sold the land in
question in favour of the defendants No. 5 to 6 in the year 2004 and
the defendants No. 5 to 6 have sold in favour of the defendant Nos. 8
and 9 in the year 2006 and similarly some plots are sold in favour of
the defendants No. 10 and 11. Thus, prima facie, it appears that
defendants No. 8 to 11 are the bonafide purchaser of the land in
question from defendants No. 5 and 6. Even otherwise, considering the
fact that the suit has been filed after a period of 16 years for
specific performance of the agreement to sell dated 23.5.1991 and in
between there are so many transactions, it cannot be said that the
learned trial Court has committed any error in dismissing the
application Exh. 5 restraining the defendants, more particularly,
subsequent purchaser from dealing with the property in question and
putting up any further construction. As held by the Hon’ble Supreme
Court in the case of Mandali Ranganna & Ors (supra) if the
suit is filed belatedly after so many years, the injunction cannot be
granted. However, an order can be passed that if any transaction
hereinafter, it shall be subject to ultimate outcome of the suit.
7. Considering
the above, when the suit has been filed after a period of 16 years
for specific performance of agreement to sell dated 23.5.1991 and in
between there are so many transactions and last transaction are in
favour of the defendants No. 8 to 11, it cannot be said that the
learned trial Court has committed any error and / or illegality and
in refusing to grant injunction. Under the circumstances, Appeal from
Order deserve to be dismissed and is accordingly dismissed.
(M.R.SHAH,
J.)
kaushik
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