{"id":233182,"date":"2011-08-24T00:00:00","date_gmt":"2011-08-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kokilaben-vs-madhuben-on-24-august-2011"},"modified":"2017-07-24T04:08:16","modified_gmt":"2017-07-23T22:38:16","slug":"kokilaben-vs-madhuben-on-24-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kokilaben-vs-madhuben-on-24-august-2011","title":{"rendered":"Kokilaben vs Madhuben on 24 August, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Kokilaben vs Madhuben on 24 August, 2011<\/div>\n
Author: Rajesh H.Shukla,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCA\/7547\/2011\t 23\/ 23\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nCIVIL\nAPPLICATION - FOR STAY No. 7547 of 2011\n \n\nIn\n\n\n \n\nAPPEAL\nFROM ORDER No. 258 of 2011\n \n\n \n\n\n \n\nWITH\n \n\n \n\n\n \n\nCIVIL\nAPPLICATION - FOR STAY No. 7446 of 2011\n \n\nIn\n\n\n \n\nAPPEAL\nFROM ORDER No. 255 of 2011\n \n\n \n=========================================\n\n\n \n\nKOKILABEN\nWD\/O DECEASED RAMANGIRI MANIGAR THRO P O A & 4 - Petitioner(s)\n \n\nVersus\n \n\nMADHUBEN\nD\/O DECD.ATMAGAR SWAROOPGAR & 11 - Respondent(s)\n \n\n=========================================\n \nAppearance :\n \n\nCIVIL\nAPPLICATION - FOR STAY No. 7547 of 2011\n \n\nIn\n\n\n \n\nAPPEAL\nFROM ORDER No. 258 of 2011 \nMR\nP.S.CHAMPANERI for Applicant \/ Appellant(s) : 1 - 2. \nNone for\nOpponent \/ Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.3.1, 1.3.2,\n1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 - 3, 3.2.1,\n3.2.2, 3.2.3,3.2.4 - 4, 4.2.1, 4.2.2, 4.2.3,4.2.4 - 5, 5.2.1,5.2.2 -\n6, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.6, 6.2.7,6.2.8 - 9, 9.2.1,\n9.2.2, 9.2.3,9.2.4 - 15. \nMR. KAMAL TRIVEDI, Ld. AG and Senior\nCounsel with Ms Sangeeta Vishen with Mr. Harsh Jani - for Opponent \/\nRespondent No.12 \n\n \n\nCIVIL\nAPPLICATION - FOR STAY No. 7446 of 2011\n \n\nIn\n\n\n \n\nAPPEAL\nFROM ORDER No. 255 of 2011 \nMR.\nB.B.NAIK with MR PARTHIV A BHATT for Applicant \/ Appellant(s) : 1 -\n2. \nNone for Opponent \/ Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3,\n1.3.1, 1.3.2, 1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3,\n2.2.4,2.2.5 - 3, 3.2.1, 3.2.2, 3.2.3,3.2.4 - 4, 4.2.1, 4.2.2,\n4.2.3,4.2.4 - 5, 5.2.1,5.2.2 - 6, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5,\n6.2.6, 6.2.7,6.2.8 - 9, 9.2.1, 9.2.2, 9.2.3,9.2.4 - 15. \nMR. KAMAL\nTRIVEDI, Ld. AG and Senior Counsel with Ms. Sangeeta Vishen with Mr.\nHarsh Jani  - for Opponent \/ Respondent No.16\n \n========================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\n \n \n\n\n \n\nDate\n: 24\/08\/2011 \n\n \n\nORAL\nORDER<\/pre>\n
Both
\n\tthe aforesaid Appeals from Order and the aforesaid two Civil
\n\tApplications are arising out of the impugned judgment and order
\n\tpassed below Application (Exh.5) in Special Civil Suit No.269 of
\n\t2010 as well as order passed below Application (Exh.5) in Special
\n\tCivil Suit No.710 of 2010 by the learned 4th Additional Senior Civil
\n\tJudge, Ahmedabad (Rural), Mirzapur at Ahmedabad, both dated
\n\t22.6.2011,  on the grounds set out in the memo of both the Appeal
\n\tfrom Orders.\n<\/p>\n
Heard
\n\tlearned learned Counsel Mr. P.S.Champaneri for the Appellants in
\n\tCivil Application No. 7547 of 2011 in Appeal from Order No.258 of
\n\t2011 and learned Senior Counsel Mr. B.B.Naik appearing with Mr.
\n\tParthiv A. Bhatt for the Applicants \/ Appellants in Civil
\n\tApplication No. 7446 of 2011 in Appeal from Order No.255 of 2011, as
\n\twell as learned Advocate General and Senior Counsel Mr. Kamal
\n\tTrivedi appearing with Ms. S.K.Vishen for the Opponent \/ Respondent\n<\/p>\n
\t– Safal Nova Realities Pvt. Limited.\n<\/p>\n
Learned
\n\tSenior Counsel Mr. B.B.Naik referred to the facts of the case which
\n\thas a chequerred history including the pedigree, and submitted that
\n\tthe Power of Attorney was executed by some of the co-owners in
\n\tfavour of Respondent No.5\/2 – Baldevbhai Sankabhai Desai in Appeal
\n\tfrom order No. 258 of 2011 and who is Respondent No.9.2 in Appeal
\n\tfrom Order No.255 of 2011, on the basis of which further
\n\ttransactions have taken place.  He submitted that the Respondent –
\n\tBaldevbhai Sankabhai Desai has in turn executed a registered sale
\n\tdeed in favour of the Respondent – Dineshbhai Shivbhagwan.  Learned
\n\tSenior Counsel Mr. Naik submitted referring to the various details
\n\tand also the impugned order passed below Application (Exh.5) in both
\n\tthe Suits, by which the injunction has been vacated that the
\n\tapproach of the Court below, i.e. the lower Appellate Court is
\n\ttotally erroneous.  He pointedly referred to some of the
\n\tobservations made in the impugned order and submitted that the Court
\n\thas failed to appreciate that the Power of Attorney is not executed
\n\tin favour of the Respondent – Baldevbhai Sankabhai Desai, and it was
\n\tnot genuine, which has been disputed in the said Suit.  Further, it
\n\twas submitted that if it is a subject matter of evidence at the
\n\ttrial, then the Court ought to have considered the other relevant
\n\tmaterial, and has failed to draw the inference, which is required
\n\tunder the pedigree.  For that purpose, he again referred to the
\n\tobservations made in the order of the Appellate Court and further
\n\tsubmitted that if the Power of Attorney is not executed by all the
\n\tco-owners then what would be the effect of such Power of Attorney or
\n\tany further transaction which may have taken place.  He therefore
\n\tsubmitted that if the Power of Attorney is not genuine, or
\n\talternatively, if it was not valid as all the co-owners have not
\n\texecuted the same, then, the subsequent transactions which may have
\n\ttaken place, will have no effect, which has not been appreciated by
\n\tthe lower Appellate Court.  He also referred to the record and
\n\tdetails at length to emphasize the submissions made by him,
\n\tparticularly with regard to the observations made in paragraphs 10
\n\tand 11  at pages 44  and 45 and also of the impugned order and
\n\tsubmitted that when genuineness of the Power of Attorney is
\n\tdisputed, the order with regard to the preservation of the disputed
\n\tland in question would have been passed.  Referring to the
\n\tobservations made in paragraph 14, learned Judge has considered the
\n\tguidelines with regard to the grant of injunction and has failed to
\n\tconsider the aspect of burden of proof.  He pointedly referred to
\n\tthe details and submitted that if broadly it was pointed out that
\n\tall the  co-owners have not executed the Power of Attorney, it will
\n\thave some bearing on subsequent transaction, and that by itself
\n\tshould have been considered for the purpose of application for
\n\tinjunction as if the property is not preserved it may lead to
\n\tfurther complication.\n<\/p>\n
Learned
\n\tSenior Counsel Mr. Naik submitted that normally, in such disputes,
\n\tthe approach of the Court should be to maintain the property as it
\n\tis so that ultimately if it is decided in favour of either party, it
\n\tis not causing prejudice.  He further submitted that if the decree
\n\tis passed, then it may not remain a mere paper decree, and
\n\ttherefore, the Court would pass an order directing the parties to
\n\tmaintain status quo to preserve the property as it is so that the
\n\trights of the third party is not created and the irreversible
\n\tsituation is not created.  he pointedly referred to this aspect and
\n\tsubmitted that if the injunction as prayed for is not granted, it
\n\twill affect the Plaintiffs – Appellants herein, as it would lead to
\n\tthe creation of third party right.  Further, learned Senior Counsel
\n\tMr. Naik submitted that the inference, which the Court is to draw,
\n\thas not been drawn.  However, the conduct of the Defendants is also
\n\tnot considered.  He further submitted that irreversible situation
\n\tmay not be created and if the injunction is not granted as could be
\n\tseen from the facts, the Respondent  –  Safal Nova Realities Pvt.
\n\tLimited would proceed further and infact it has proceeded further,
\n\tand therefore, it would cause prejudice to the rights of the
\n\tAppellants – Original Plaintiffs.\n<\/p>\n
In
\n\tsupport of his aforesaid submissions, learned Senior Counsel Mr.
\n\tNaik referred to and relied upon the judgment of the Hon’ble Apex
\n\tCourt in case of Special Land Acquisition Officer and Otehrs v.
\n\tMallanagouda Rayanagouda Patil and Others,<\/a> 1985(5) SCC 544.  He
\n\thas also referred to and relied upon the judgment of the Hon’ble
\n\tApex Court in case of Gangubai Babiya Chaudhary and Others v.
\n\tSitaram Bhalchandra Sukhtankar and Others, AIR<\/a> 1983 SC 742 and
\n\tpointedly referred to the observations made in paragraphs 6 and 7.
\n\tLearned Senior Counsel Mr. Naik has also referred to and relied upon
\n\tthe judgment of the Hon’ble Apex Court in case of Dalpat Kumar
\n\tand another v. Prahlad Singh and others, AIR 1993 SC 276 and
\n\tpointedly referred to the observations made in paragraphs 4 and 5 to
\n\tfurther emphasize with regard to the criteria or the guidelines
\n\twhich are required to be considered for the purpose of granting
\n\tinjunction and emphasized the observations made in paragraph 5 which
\n\treads as under:\n<\/p>\n
“………………….The
\n\tcourt while granting or refusing to grant injunction should exercise
\n\t sound judicial discretion to find the amount of substantial
\n\tmischief or injury which is likely to be caused to the parties, if
\n\tthe injunction is refused and compare it with that it is likely to
\n\tbe caused to the other side if the injunction is granted.
\n\t………………… Thus the Court has to exercise its sound
\n\tjudicial discretion in granting or refusing the relief of ad interim
\n\tinjunction pending the suit.”\n<\/p>\n
Learned
\n\tSenior Counsel Mr. Naik has also referred to and relied upon the
\n\tjudgment of the Hon’ble Apex Court in case of Dorab Cawasji
\n\tWarden v. Coomi Sorab Warden and others<\/a>, AIR 1990 SC 867 and
\n\tpointedly referred to the observations made in paragraphs 27 and 28
\n\tand submitted that it has also referred to and discussed the earlier
\n\tEnglish judgments with regard to the principles which have been
\n\tdiscussed in paragraphs 14 and 15.  He therefore submitted that both
\n\tthe present Appeals from Order  may be admitted by which the
\n\tinjunction has been vacated by the lower Appellate Court and the
\n\tposition may be restored.\n<\/p>\n
Learned
\n\tCounsel Mr. P.S.Champaneri appearing for the Appellants in  Appeal
\n\tfrom Order No.258 of 2011 has also referred to the papers at length
\n\tand tried to support the submissions canvassed by learned Senior
\n\tCounsel Mr. B.B.Naik.  He submitted that though he has adopted the
\n\tsubmissions made by learned Senior Counsel Mr. B.B.Naik, he would
\n\tsupplement the submissions, for which, he referred to the details
\n\tand submitted that the transactions have taken place from time to
\n\ttime.  He submitted that as a Power of Attorney holder of the three
\n\tladies, the Respondent No. 5\/2 –  Baldevbhai Sankabhai Desai could
\n\tnot have executed a sale deed without the approval of the co-owners.
\n\t He also referred to and emphasized the conduct of Respondent No.6
\n\tand submitted that as per the panchnama, which is produced at
\n\tExh.14, there was only some material pending, but no construction
\n\twas made, whereas inspite of knowing the pendency of such
\n\tapplication with the Suit, the Respondent –  Safal Nova Realities
\n\tPvt. Limited proceeded further, which suggest about their conduct,
\n\twhich he has pointedly referred.  Therefore, he has submitted that
\n\tthe construction has been made by the Respondent No.16 –  Safal Nova
\n\tRealities Pvt. Limited with own eyes knowing pending litigation as
\n\twell as application for injunction, and therefore cannot be heard to
\n\tsay about the fact that there is any hardship likely to cause if the
\n\tinjunction is granted.\n<\/p>\n
Learned
\n\tAdvocate General and learned Senior Counsel Mr. Kamal Trivedi
\n\tappearing for the Respondent –  Safal Nova Realities Pvt. Limited
\n\thas referred to the pedigree produced on record at pages 31 and 83
\n\tof Appeal from Order No. 258 of 2011 and submitted that originally
\n\tone Swaroopgar was having this land for the purpose as vahivatkarta
\n\tof Kalimas Temple and since
\n\t1948 these entries have been made.  The Atmagar Swaroopgar and
\n\tDevgar Swaroopgar were the two sons.  The branch of Atmagar
\n\tSwaroopgar consisted of widow Chanchalben of deceased Atmagar and
\n\tdaughter Shardaben and Madhuben.  Madhuben is Defendant – Respondent
\n\tNo.1 herein, who is said to have initially executed Power of
\n\tAttorney in favour of Respondent No.5\/2 –  Baldevbhai Sankabhai
\n\tDesai.  Learned Advocate General and learned Senior Counsel Mr.
\n\tKamal Trivedi submitted that there are five registered sale deeds
\n\tafter the Power of Attorney was executed on 12.3.1993 and the said
\n\tPower of Attorney is sought to be challenged or doubted after so
\n\tmany years during which about five transactions with registered sale
\n\tdeed have taken place.  For that purpose, he submitted that, on the
\n\tbasis of Power of Attorney executed by the
\n\tthree ladies as stated above on 16.4.1993 in favour of Respondent
\n\tNo.5\/2 – Baldevbhai Sankabhai
\n\tDesai.  Thereafter on 18.9.1993, the registered sale deed
\n\twas executed by four
\n\tpersons in favour of Defendant Nos. 6 to 11.  The said four persons
\n\tare original Defendant Nos. 2, 3, 4 and 5 executed registered sale
\n\tdeed in favour of Original Defendant Nos. 6 to 11, i.e. Vedprakash
\n\tDevkinandan and others known as Chiripal Group.  The said Defendant
\n\tNos. 6 to 11 developed the land in question as Nova Party Plot and
\n\tutilized the same from 1993 to 2006.  Thereafter the said Defendant
\n\tNos. 6 to 11 – “Chiripal Group” sold it to the
\n\tRespondent – Safal Nova Realities Pvt. Limited  by registered sale
\n\tdeed dated 30.12.2006.  Therefore learned Advocate General and
\n\tSenior Counsel Mr. Kamal Trivedi submitted that for the fist time it
\n\tis stated that it came to the notice on 30.12.2009 with regard to
\n\tthe construction or the land which is situated at Bodakdev, and the
\n\tPlaintiffs \/ Appellants herein have filed a Suit on 23.4.2010 on
\n\t12.10.2010.\n<\/p>\n
\t The ad interim relief was refused.  Learned Advocate General has
\n\talso referred to the paper book which he has supplied referring to
\n\tthe various revenue record entries in village Form 7\/12 and
\n\tsubmitted particularly referring to the Entry no.1806 produced at
\n\tmark 22\/3 and other Entry No.2456 at mark 22\/4 and also Entry
\n\tNo.3006 at mark 22\/6, how Baichanchal considered to be an exclusive
\n\towner though the claim has been made by the Appellants herein with
\n\tregard to their right, title and interest.  Leaned Advocate General
\n\tand Senior Counsel Mr. Kamal Trivedi
\n\tsubmitted that infact
\n\tas could be seen from the Entry No.3006
\n\tat Mark 22\/6 that when on the one hand it is noted that there are no
\n\theirs of Bai Chanchalben whereas the Entry is sought to be mutated
\n\tin the name of the heirs which was thereafter taken in revision and
\n\tultimately SSRD passed a detailed order which he has referred to in
\n\tdetail.  He pointedly emphasized the details in the order of the
\n\tSSRD produced with the paper book and submitted that he has
\n\tconsidered in detail in entire history with regard to the land and
\n\tvarious Entries.  He has also submitted that it is required to be
\n\tmentioned that Respondent \/ Defendant Nos. 6 to 11 made an
\n\tapplication for getting NA permission which has been granted, and on
\n\tthe basis thereof, ultimately, even in the government record of the
\n\tTown Planning Department when the T.P.Scheme No.50 for Bodakdev was
\n\tmade, the names of Respondent Nos. 6 to 11 have been mentioned in
\n\tthe column of owners.  He therefore submitted that this prima facie
\n\tsuggest about the fact that the transactions have taken place which
\n\thas never been objected, and for the first time, after 20 years, the
\n\tAppellants – Original Plaintiffs have raised the dispute with regard
\n\tto Power of Attorney contending that it is not genuine, and
\n\talternatively, even if it is genuine, it has not been signed by all
\n\tthe co-owners, and therefore, even subsequent transactions would be
\n\tnull and void.  However, learned Advocate General and Senior Counsel
\n\tMr. Kamal Trivedi submitted that as pointed out from the
\n\trecord, infact Bai Chanchal was accepted by the revenue authorities
\n\tas the owner though initially it was limited right of occupation.
\n\tShe has been accepted as the only owner and on the basis thereof
\n\tfurther transactions have taken place by registered sale deed, and
\n\ttherefore, the Court having considered all these aspects has passed
\n\tthe order, which cannot be said to be erroneous.  Learned Advocate
\n\tGeneral and Senior Counsel Mr. Kamal Trivedi submitted that
\n\tDefendant No.1-Madhuben is the daughter of Bai Chanchal from whom
\n\tthe present Appellants \/ Plaintiffs are claiming right, title and
\n\tinterest whereas as could be seen from the record Bai Chanchal was
\n\tthe owner without any heirs which is a matter of appreciation of
\n\tevidence.  Therefore, it cannot be said that the order made by the
\n\tCourt below is erroneous.\n<\/p>\n
Leaned
\n\tAdvocate General and Senior Counsel Mr. Kamal Trivedi submitted that
\n\tthe submissions have been made with regard to the burden of proof,
\n\tdrawing of inference and the guidelines \/ criteria for grant of
\n\tinjunction.  However, he submitted that though much emphasis was
\n\tgiven on the conduct of the Respondent – Safal Nova Realities Pvt.
\n\tLtd., the conduct of the Appellants – Plaintiffs is also required to
\n\tbe noted as they have awaken from slumber after so many years, which
\n\titself would dis-entitle them from any discretionary relief.  He
\n\tpointedly referred to the details and the facts and submitted that
\n\tthe five registered sale deeds which have taken
\n\tplace are sought to be challenged on the basis that the Power
\n\tof Attorney which was executed in the year 1993 in favour of
\n\tRespondent No. 5\/2 – Baldevbhai Sankabhai Desai is not genuine and
\n\talternatively, it is not signed by all the co-owners though the
\n\trevenue record suggest otherwise, which has been discussed at length
\n\tin the order of SSRD.  Further, learned Advocate General and Senior
\n\tCounsel Mr. Kamal Trivedi submitted that the submissions have been
\n\tmade for the burden of proof and the inference regarding the
\n\tapproach of the Court, but it has not been pointed out as to what
\n\tevidence has been placed with regard to drawing any inference in
\n\tfavour of the Appellants \/ Plaintiffs in such disputed questions,
\n\trequiring a detailed examination on the basis of the evidence.
\n\tTherefore, the inference could have been drawn which has also been
\n\tnoted by the Court below.  Further he submitted that it is for the
\n\tAppellants \/ Plaintiffs to come forward instead of casting a burden
\n\ton the Defendants that they have to produce the documents, failing
\n\twhich the inference could be drawn.  Moreover, even if some
\n\tdocuments are not produced, the Appellants \/ Plaintiffs having
\n\tcalled upon the Defendants by making necessary application, and
\n\ttherefore, the submission made by learned Counsel for the Appellants
\n\t\/ Plaintiffs that inference ought to have been drawn, cannot be
\n\taccepted.  Further, learned Advocate General and Senior Counsel Mr.
\n\tKamal Trivedi submitted that the
\n\tcriteria for grant of injunction is very well settled and the
\n\treliance placed by learned
\n\tSenior Counsel Mr. Naik in case of Dalpat
\n\tKumar and another v. Prahlad Singh and others (supra)
\n\tinfact refers to the
\n\trepeated round of litigations in that case and still the injunction
\n\tgranted by the High Court was not held to be justified as it has
\n\tbeen observed that the doctrine of lis pendence under Section 52 of
\n\tthe Transfer of Property Act would be appreciated if any alienation
\n\tis made.   The Court has also referred to the prima facie case,
\n\tbalance of convenience and irreparable loss.\n<\/p>\n
He
\n\ttherefore submitted that the Court had to weigh the rival claims,
\n\tand after discussion, the impugned order has been passed, which
\n\tcannot be said to be erroneous and therefore the present petition
\n\tmay not be entertained.  He also referred to the judgment of the
\n\tHon’ble Apex Court in case of Kishorsinh Ratansinh Jadeja v.
\n\tMaruti Corporation and Others,<\/a> (2009) 11 SCC 239 and further
\n\temphasised the observations made therein particularly paragraphs 18,
\n\t19 and 41 to support his submission.  He pointedly referred to the
\n\tobservations made in paragraph 41 to emphasize that the conduct of
\n\tthe Appellants \/ Plaintiffs may also be considered in the facts of
\n\tthe case that they have awaken from slumber after so many years and
\n\ttherefore that itself would dis-entitle from any relief and both the
\n\tAppeal from Orders may not be entertained.\n<\/p>\n
In
\n\tview of the rival submissions, it is required to be considered
\n\twhether the present Appeal from Order would be entertained or not.\n<\/p>\n
As
\n\tit transpires from the material and evidence as well as rival
\n\tsubmissions which have been discussed threadbare in detail, clearly
\n\tsuggest from the facts which have been placed on record about the
\n\thistory that the Appellants are claiming share in the property as
\n\tthe heir of one of the branches as shown in the pedigree produced at
\n\tpage 83 in Appeal from Order No. 258 of 2011.  Originally, one
\n\tSwargoopgar and his widow had two sons – Atmgar Swaroopgar and
\n\tDevgar Swaroopgar.   The branch of Atmgar Swaroopgar consisted of
\n\twidow Chanchalben of deceased Atmagar and daughter Shardaben and
\n\tMadhuben – Respondent No.1.  Whereas Devgar Swaroopgar another
\n\tson of the deceased Atmagar Swaroopgar had five sons who in turn had
\n\ttheir own descendants  which is stated in detail in the pedigree.
\n\tThe claim made by the Appellants herein is that it is the joint
\n\tproperty in which they have right, title, interest and they have
\n\tundivided share in the said land in question, and therefore, any
\n\ttransaction without their knowledge or consent would be void.  The
\n\tsubmissions have also been made that the Defendant Nos. 2 to 5 in
\n\tcollusion have made transactions behind the back of the Appellants \/
\n\tPetitioners, for which the registered documents are also executed,
\n\tbut they are void, and as it has been executed without any consent
\n\tor knowledge of the Appellants \/ Petitioners with an oblique motive
\n\tand \/ or fraud, such transactions and \/ or the documents executed,
\n\tare void.  It is also contended that further transactions, including
\n\tthe transactions with the Respondent – Safal Nova Realities
\n\tPvt. Ltd. would therefore also be without any basis and no right
\n\tcould be claimed on the basis of the right, title or interest
\n\tclaimed by anybody by misrepresentation or fraud.  Therefore, much
\n\temphasis is made by learned Counsel Mr. Naik that if the initial
\n\ttransaction itself is void, the subsequent transaction, even by
\n\tregistered sale deed would be void and would not convey any title in
\n\tfavour of the Respondent – Safal Nova Realities Pvt. Ltd., and
\n\ttherefore, the Respondent – Safal Nova Realities Pvt. Ltd.  cannot
\n\tclaimed to be a bonafide purchaser for value.\n<\/p>\n
It
\n\tis required to be appreciated in light of these submissions which
\n\thave been made, the other side of the entire submissions have also
\n\tbeen much emphasized  by learned Advocate General and Senior Counsel
\n\tMr. Kamal Trivedi for the Respondent – Safal Nova Realities
\n\tPvt. Ltd., referring to the pedigree in detail and the transactions
\n\twhich have taken place.\n<\/p>\n
As
\n\trecorded hereinabove, in the year 1993 Defendant Nos.2 to 5 are said
\n\tto have conveyed by executing registered sale deed to original
\n\tDefendant Nos. 6 to 11.  Thereafter, the original Defendant Nos. 6
\n\tto 11 are said to have developed the land in question, enjoyed it
\n\tfor about 8 to 10 years in the name of Nova Party Plot and it is
\n\tthereafter they have entered into transaction with Defendant No.4 by
\n\texecuting a registered sale deed on 30.12.2006.  Thereafter, for the
\n\tfirst time in December, 2009 it is stated that it came to the
\n\tknowledge of the present Appellants \/ Plaintiffs about such
\n\ttransactions or the irregularity, and subsequently, the Suit is
\n\tfiled on 23.4.2010.  The ad interim relief was also refused in
\n\tAppeal from Order No.258 of 2011 and there is reference to various
\n\tentries made for this purpose.  Therefore, it is very evident that
\n\tthough the original Plaintiffs \/ Appellants herein have claimed
\n\tabout the right, title, interest that it is a joint undivided share
\n\tin the property, the entries, which have been referred to also makes
\n\ta prima facie case and suggest about the various stages, and
\n\tultimately, the transaction with regard to the sale in favour of the
\n\tRespondent – Safal Nova Realities Pvt. Ltd.  Therefore, a bare
\n\tperusal of this entire record and the rival submissions would make
\n\tthe few aspects very evident that on the one hand the right is
\n\tclaimed on the basis that it is a joint property between the two
\n\tbranches and the Plaintiffs who belong to one branch and  have
\n\tundivided share in the said land in question, and therefore, any
\n\tsubsequent transaction without their knowledge or consent is void.
\n\tOn the other hand a detailed reference to the entries coupled with
\n\tthe passage of time and the development of the property with change
\n\tof the circumstances from time to time clearly suggest that there
\n\tare 5 sale deeds executed in between.  There is no claim, no
\n\tobjection, and if it is assumed for the sake of argument that the
\n\tAppellants \/ Plaintiffs are residing in a different area where they
\n\tmay not be passing from the land in question every time so that they
\n\tcan notice about the development, still they would know when they
\n\tare claiming an undivided share in the property which is situated
\n\tnear to the S.G.Highway, which is a fast developed area and cannot
\n\tbe oblivious of the surrounding development.  Therefore to say that
\n\tfor years together they had no knowledge,  and only in the year 2009
\n\tthey came to know, is too difficult to accept.  Even thereafter as
\n\tcould be seen from the record, what has been claimed is a right or a
\n\tshare in the entire property, but there is no say about the
\n\tconversion of the land into NA, developments thereof, and enjoyment
\n\tthereof for years, by the Original Defendants.  One cannot be so
\n\tignorant of ones own right or title in the property that the other
\n\tbranch gets the NA and makes further development for use and
\n\tenjoyment in the form of a club and the persons like Plaintiffs \/
\n\tAppellants are not even aware.  Therefore, without any further
\n\telaboration, on the one hand though the right is claimed, the entire
\n\tchain of events and the circumstances over a period of time, which
\n\thave taken place, and 5 sale deeds which have been executed, cannot
\n\tbe brushed aside only on the ground that the claim is made that the
\n\tAppellants \/ Plaintiffs were not aware or had no knowledge about the
\n\tsubsequent transaction.  Further, even if it is assumed for the sake
\n\tof argument that they had no knowledge, still what would be the
\n\tposition pending hearing of the Suit with regard to the interim
\n\trelief, is required to be considered.\n<\/p>\n
The
\n\tHon’ble Apex Court has laid down the guidelines in the case of
\n\tDorab Cawasji Warden v. Coomi Sorab Warden and others<\/a> (supra).
\n\t The observations made in paragraphs 14 with regard to the guideline
\n\tclearly provide that not only a prima facie case but balance of
\n\tconvenience and the comparative hardship is required to be
\n\tconsidered.  The Court is required to weigh the respective claimants
\n\tand try to balance the same so that least harm is caused to either
\n\tparty.  That has lead to the evolvement of the concept of
\n\tcomparative hardship, which again has a reference comparing the
\n\thardship that may be caused to either party, by passing the order.
\n\tTherefore, in the facts of the present case, in light of the
\n\tcircumstances and the developments which have taken place and also
\n\tconsidering the provisions of Specific Relief Act, it could be said
\n\tthat, ultimately the right of the Appellants Plaintiffs should be
\n\tprotected for claiming the adequate damages.  Therefore, if it could
\n\tbe compensated in terms of money,
\n\tthe injunction should not follow.\n<\/p>\n
\tIt is required to be
\n\tmentioned that normally the approach of the Court would be to
\n\tmaintain status quo with regard to the disputed property in order to
\n\tsee that ultimately, the property or the land in question is
\n\tpreserved till the rights are crystallized and decided finally and
\n\tthat could be a equitable justification.  However, at the same time,
\n\tit is not desirable in every case, as otherwise, it lead to causing
\n\ta great comparative hardship to one party merely because some claim
\n\tis made, which is kept pending for some time or the years together
\n\tcausing irreversible damage to the other side. It is in such
\n\tcircumstances, the Court has to consider the comparative hardship
\n\tand pass appropriate order keeping some provisions for compensating
\n\tthe party who ultimately may succeed, even if the property is
\n\tallowed to be developed.\n<\/p>\n
It
\n\tis in these circumstances, time and again the Hon’ble Apex Court has
\n\tmade observations in case of Dalpat Kumar and another v.
\n\tPrahlad Singh and others (supra)
\n\tand observed:\n<\/p>\n
“The
\n\tphrases “prima facie case”, “balance of
\n\tconvenience” and
\n\t“irreparable loss” are not rhetoric phrases for
\n\tincantation, but words of width and elasticity, to meet myriad
\n\tsituations presented by man’s ingenuity in given facts and
\n\tcircumstances, but always is hedged with sound exercise of judicial
\n\tdiscretion to meet the ends of justice.”\n<\/p>\n
The
\n\tHon’ble Apex Court has emphasized about the sound exercise of
\n\tjudicial discretion to meet the ends of justice and the words of
\n\tbalance of convenience and irreparable loss or the comparative
\n\thardship are stated to be the words of width and elasticity.\n<\/p>\n
Further,
\n\tas observed by the Hon’ble Apex Court in case of Gujarat
\n\tBottling Co. Ltd. And Others v. Coca Cola Co. And Others,<\/a> (1995) 5
\n\tSCC 545 while considering the
\n\taspect of interim injunction, balance has to be struck by providing
\n\tsome kind of an undertaking with some deposit to compensate the
\n\tother party in case the decision is in favour of that party.\n<\/p>\n
Therefore,
\n\tthough normally the status quo with regard to the land or the
\n\tproperty in question is ordered to be maintained so as to protect
\n\tthe interest of both sides till the rights are crystalized and
\n\tinjunction is granted, however, for that there has to be a strong
\n\tprimafacie case and the balance of convenience must be almost equal
\n\ton each side, whereas in the facts of the present case, as discussed
\n\tabove, it cannot be said that the primafacie case or the balance of
\n\tconvenience is totally in favour of the Appellants \/ Plaintiffs,
\n\tparticularly considering the claim, delay, conduct and also the
\n\tdevelopment which has taken place by 5 registered sale deeds during
\n\tthe entire period, which has not been challenged.  It is in these
\n\tcircumstances, the party cannot be restrained from making use of the
\n\tproperty \/ land in question which is purchased as a bonafide
\n\tpurchaser.  At the same time if it is permitted to be developed, the
\n\trights of the third party may be
\n\tcreated and it may cause prejudice to the Appellants \/ Plaintiffs,
\n\tif ultimately they succeed.  It is in these circumstances, it would
\n\tbe in the fitness of things, if the Respondents \/ Original
\n\tDefendants may be permitted to make further construction or the
\n\tdevelopment, but shall deposit the amount of Rs.50 lacs alongwith an
\n\tundertaking that in case the Appellants \/ Plaintiffs succeed in the
\n\trespective Suit, they will not claim any right on the ground that
\n\tnow they have been permitted to develop and \/ or shall also
\n\tundertake to deposit any amount, which the Court may decide as
\n\tdamages ultimately if they are not in a position to restore the
\n\tpossession of the land in question.\n<\/p>\n
The
\n\tamount of Rs. 50 lacs in each Suit, i.e. Rs.1 crore shall be
\n\tdeposited in the name of the Registrar, High Court of Gujarat, which
\n\tcan be invested in a fixed deposit with any Nationalized Bank
\n\tsubject to renewal till the final outcome of the present Appeal from
\n\tOrders and \/ or Civil suit.\n<\/p>\n
Therefore,
\n\tboth the Appeals from Order are Admitted and the interim relief as
\n\tprayed for in both the Civil Applications, regarding the stay of the
\n\texecution and operation of the order dated 22.6.2011 passed by the
\n\tlearned 4th Additional Senior Civil Judge, Ahmedabad
\n\t(Rural), Mirzapur at  Ahmedabad, below Application (Exh.5) in Civil
\n\tSuit No.269 of 2010 as well as order passed below Application
\n\t(Exh.5) in Special Civil Suit No.710 of 2010 cannot be entertained,
\n\tthough as stated above, the balance could be maintained for both the
\n\trival claimants of both the sides as stated hereinabove.\n<\/p>\n
With
\n\tthe aforesaid observations, both the Civil Applications stand
\n\tdisposed of accordingly.\n<\/p>\n
\tThe parties may also
\n\tmove the Civil Court for expediting the hearing of the Suit.\n<\/p>\n
(Rajesh H.\n<\/p>\n
Shukla,J)<\/p>\n
 FURTHER
\nORDER<\/p>\n
\tAfter the
\norder was pronounced, learned Advocate Mr. Y.B.Vaghela for learned
\nSenior Counsel Mr. P.S.Champaneri for the Applicants requested for
\nstay of the operation of the order.\n<\/p>\n
\tLearned
\nAdvocate General and Senior Counsel Mr. Kamal Trivedi with learned
\nAdvocate Ms. Sangeta Vishen for the Opponent has stated that there is
\nno stay operating, and therefore, the request may not be entertained.\n<\/p>\n
\tAs there
\nis no stay operating, there is no question of stay of the operation
\nof the present order and request is therefore rejected.\n<\/p>\n
(Rajesh H.\n<\/p>\n
Shukla,J)<\/p>\n
Jayanti*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Kokilaben vs Madhuben on 24 August, 2011 Author: Rajesh H.Shukla, Gujarat High Court Case Information System Print CA\/7547\/2011 23\/ 23 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION – FOR STAY No. 7547 of 2011 In APPEAL FROM ORDER No. 258 of 2011 WITH CIVIL APPLICATION – FOR STAY […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-233182","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nKokilaben vs Madhuben on 24 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kokilaben-vs-madhuben-on-24-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kokilaben vs Madhuben on 24 August, 2011 - 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