Gujarat High Court
Bhupendrabhai Hasmukhbai vs Saivtriben Ganumal on 7 March, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
BHUPENDRABHAI HASMUKHBAI DALWADIV/SSAIVTRIBEN GANUMAL KRISHNANI C/AO/281/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO. 281 of 2012 With CIVIL APPLICATION NO. 8421 of 2012 In APPEAL FROM ORDER NO. 281 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ================================================================ 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 ? ================================================================ BHUPENDRABHAI HASMUKHBAI DALWADI & 4....Appellant(s) Versus SAIVTRIBEN GANUMAL KRISHNANI & 6....Respondent(s) ================================================================ Appearance: MR DHAVAL DAVE, SR. ADVOCATE, with MR PARTHIV B SHAH, ADVOCATE for the Appellant(s) No. 1 - 5 MS MANISHA LAVKUMAR SHAH, ADVOCATE for the Respondent(s) No. 2 - 5 , 7 UNSERVED-EXPIRED (N) for the Respondent(s) No. 1 VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 6 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 07/03/2013 ORAL JUDGMENT
The present Appeal from Order has been filed by the appellants-original plaintiffs being aggrieved with the impugned order passed below Exh. 5 in Special Civil Suit No. 175/2006 by the learned Chief Judicial Magistrate and Addl. Sr. Civil Judge, Vadodara, dated 16.5.2012, on the grounds stated in the Appeal from Order. With the consent of the learned advocates appearing for the respective parties, the arguments have been heard at length and treated as finally heard.
2. Heard learned Sr. Counsel Shri Dhaval Dave appearing with learned advocate Shri Parthiv Shah for the appellants. He has referred to the paper-book produced and submitted that the court below has failed to consider the relevant aspects for deciding the issue involved in the matter. Learned Sr. Counsel Shri Dave pointedly referred to the sale deed dated 5.1.1965 produced on record at p. 247 of the paper-book and submitted that it is not a registered sale deed and therefore would not be admissible in evidence and it could not have been considered or relied upon by the court below. He further submitted that at the most it could be said to be an agreement to sell. He submitted that even after execution of the sale in 1965, the possession has been given in favour of Hasmukhbhai Dalvadi, respondent No. 6, and there are documentary evidence that the possession has remained even thereafter with respondent No. 6, Hasmukhbhai Dalvadi, who is the father of the appellants-plaintiffs. Learned Sr. Counsel Shri Dave for that purpose referred to the order/communication of the Taluka Panchayat Office, Vadodara, that N.A. permission was granted in favour of respondent No. 6, Hasmukhbhai Dalvadi. Similarly, he referred to the temporary permission given for brick manufacturing which is also produced on record. He also referred to the order dated 3.8.1981 by the office of the District Panchayat to support his submission that permission has been granted for carrying on the business of brick manufacturing which would go to show that the possession has remained with respondent No. 6, Hasmukhbhai Dalvadi.
3. Learned Sr. Counsel Shri Dave, therefore, submitted that the transaction which has been entered into by respondent No. 6 with respondents Nos. 1-5 is contrary to he interests of the appellants-plaintiffs who are the sons and therefore they have filed the suit. Learned Sr. Counsel Shri Dave submitted that the property in question has been an ancestral property and therefore the injunction which has been refused would cause prejudice to the rights of the appellants if the interest is not protected by directing status-quo with regard to the land in question till the suit is decided. He has referred to the papers in detail and emphasised that though the claim is made by the respondents, they have no document to support their claim in any manner. He submitted that the court below has failed to appreciate this aspect while deciding the aspect of injunction and therefore the present Appeal from Order may be allowed.
4. Learned Sr. Counsel Shri Dave has referred to and relied upon the judgment of the Hon ble Apex Court in the case of S. Kaladevi v. V.R. Somasundaram and ors., reported in (2010) 5 SCC 401, and emphasised the observations made in paras 7, 12, 16 and 18. Learned Sr. Counsel Shri Dave strenuously submitted that the unregistered sale deed was not considered as an evidence of sale and the court below ought to have considered that the suit itself was not maintainable in that case. He has also pointedly referred to the observations made in para 12 with regard to the unregistered document and the effect thereof as per the provisions of sec. 49 of the Registration Act.
5. Learned Sr. Counsel Shri Dave has also referred to and relied upon the judgment of the Hon ble Apex Court in the case of Suraj Lamp and Industries Private Limited through Director v. State of Haryana and anr., reported in (2012) 1 SCC 656, and emphasised the observations in para 16 which reads as under:
Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property..
Learned Sr. Counsel Shri Dave, therefore,m submitted that the Hon ble Apex Court has quoted and referred to earlier judgments. He emphasised that the transferor would remain the owner of the property till it is legally conveyed by a registered sale in favour of the transferee. Learned Sr. Counsel Shri Dave strenuously submitted that it gives a right to protect the possession, and in the facts of the present case, therefore, the court below has failed to appreciate this aspect.
6. He has also referred to and relied upon the judgment of the Hon ble Apex Court in the case of Julien Educational Trust v. Sourendra Kumar Roy and ors., reported in (2010) 1 SCC 379, with regard to interim injunction and submitted that it has been observed that if the injunction is not granted, the monetary compensation of land may not be sufficient and may not be treated as good in many cases. He, therefore, submitted that if, in the facts of the case, the respondents are permitted to proceed further with the construction and development activity, nothing would remain in the suit which would cause great prejudice to the rights of the present appellants-original plaintiffs. He therefore submitted that the property in such cases is required to be preserved as it is.
7. Learned Sr. Counsel Shri Dave has also referred to and relied upon the judgment of the Hon ble Apex Court in the case of Maharwal Khewaji Trust (regd.), Faridkot v. Baldev Dass, reported in (2004) 8 SCC 488, and emphasised the observations made in para 7 that the status-quo is required to be maintained. He, therefore, submitted that the present Appeal from Order may be allowed.
8. Learned advocate Ms. Manisha Luvkumar Shah appearing for respondents Nos. 2-5 and 7 submitted that the sum and substance of the claim is that the property in question is an HUF property and the father, that is, respondent No. 6, had no right to sell the property and therefore whatever has been done is void without any right. She submitted that therefore first it has to be established that it is an HUF property and respondent No. 6-father had no right. However, she submitted that the documentary evidence and the papers would suggest otherwise that it is only a method to back out from the commitment by such collusion between the appellants-plaintiffs and respondent No. 6-father. She submitted that therefore a suit has been filed in the name of appellants-plaintiffs (sons), but the documentary evidence would make the position clear that it is not an ancestral property in the hands of respondent No.6 father, Hasmukhbhai Dalvadi. For that purpose learned advocate Ms. Shah referred to the paper-book and referred to the entries at p. 112 and submitted that Entry No. 1660 clearly refers to the sale deed executed by respondent No. 6-father in favour of respondents Nos. 1-5. She referred to p. 114 of the paper-book which refers to the summary of entries, particularly Entry No. 16 & 17. It has been submitted that the entries have been mutated in favour of the respondents or their heirs.
9. Learned advocate Ms. Shah referred to the sale deed in favour of respondents Nos. 1-5 produced at p. 247 of the paper-book and submitted that it refers to survey No. 122 paiki and 50,000 sq.mtrs. of land out of total land of 51,395 sq.mtrs. She, therefore, submitted that 50,000 sq.mtrs have been sold by this document executed in 1965 by respondent No.6-father and the same is now sought to be challenged in the year 2013 without any basis only on the bogey that it is an ancestral property.
However, she submitted that documentary evidence speaks otherwise and make the position clear that it was not an ancestral property.
10. Learned advocate Ms Shah submitted that respondent No.6 father filled in the form as required under the ULC Act before the competent authority and thereafter in a further proceeding by way of appeal, the order has been passed accepting the say of respondent No. 6 that the land in question has been sold way back in 1965. She pointedly referred to the said order which refers to the fact of sale of 50,000 sq.mtrs. of land by sale deed dated 5.1.1965 to respondents Nos. 1-5 and it was specifically stated that the holding of respondent No. 6 would therefore confine to only 1395 sq.mtrs of land of survey No. 122 paiki. Again, it has been claimed how it should be considered when there are residential units constructed for the purpose of ULC Act. Learned advocate Ms. Shah has also referred to the registered sale deed executed between one Maganbhai Rupawel (purchaser and present appellants Nos. 1-2 and respondent No. 6 where the respondents have been a confirming party and have signed the document). Learned advocate Ms. Shah pointedly referred to the recitals in this which has stated about the preface about the entire survey No. 122 and it clearly mentions that it was purchased by respondent No. 6 father by a sale deed from the earlier owner Tarsibhai Jorbhai as an absolute owner. Out of that total land admeasuring 51,395 sq.mtrs. of survey No. 122, 50,000 sq.mtrs. of land have been sold by respondent No. 6 father by a sale deed in favour of respondents Nos. 1-5 and the remaining 1395 sq.mtrs. of land remained with him which again has been his own property, but he has mutated the name of the two sons.
11. Learned advocate Ms. Shah also referred to and relied upon the power-of-attorney executed by appellant No. 1 and 2 and respondent No. 6 in favour of respondent No. 5 Kumarbhai Ganumal Krishnani for the remaining portion of the land of 1395 sq.mts. supported with the affidavit of the power-of-attorney holder. Therefore, learned advocate Ms. Shah has stated that a bogey of ancestral property has been raised as an after-thought only to create some right which never existed. She further submitted that the suit is filed in the name of the plaintiffs and they are in collusion with respondent No.6-father.
12. Therefore, learned advocate Ms. Shah submitted that the present Appeal from Order may not be entertained and the impugned order passed is just and proper. She strenuously submitted that this document in favour of the third party for remaining land of 1395 sq.mtrs. is of 2002 and the recitals make it very clear, coupled with the fact that even the respondents have been a party to the document as a confirming party would make the position clear. Learned advocate Ms. Shah again referred to the averments in the plaint which according to her is very curious that respondent No. 6 was under hypnotism and she pointedly referred to the prayer in the suit. She therefore, submitted that the present Appeal from Order may not be entertained.
13. In rejoinder, learned Sr. Counsel Shri Dave has reiterated the submission that there is no document on the basis of which any right, title or interest can be claimed by the respondents. He therefore submitted that if there is no document, and assuming that the document of 1965 is considered, at the most, it could be an agreement to sell for which there is no further development and the respondents cannot stall the property of the appellants-plaintiffs.
14. In view of rival submissions, it is required to be considered whether the present Appeal from Order can be entertained or not.
15. The main basis for the suit and the claim by the appellants-plaintiffs is on the assumption that the property in question is an ancestral property and, therefore, it is a joint Hindu Undivided Family property in the hands of respondent No.6-father. Again, respondent No. 6 could not have dealt with the same as an absolute owner of the property. However, though such claim has been made, there is no evidence or material which could suggest about such HUF character of the property in question. In fact, the documentary evidence on record including the entries which have been made pursuant to the sale deed executed in favour of the respondents in 1965 and the entries made in favour of the respondents-owners of 1972 as well as subsequently the orders which have been passed by the authorities including ULC authority clearly suggest that respondent No. 6 had in fact maintained that it was his self-acquired property and he has disposed it of by a sale deed in the year 1965. He pointedly stated that out of total area of 51395 sq.mtrs. of survey No. 122, he has sold 50,000 sq.mtrs. Further, the remaining 1395 sq.mtrs. he has claimed under the ULC that residential units are permissible and therefore how his holding should be considered for the purpose of ULC Act. Again, in the year 2002, the remaining portion of 1395 sq.mtrs. of land has been sold by executing a sale deed in favour of third party wherein respondents Nos. 1-5 have been a confirming party. Moreover, in that document executed in 2002, the recitals which have been much emphasised by learned advocate Ms. Shah makes it clear that a preface has been given as to how respondent No. 6 father acquired the whole land of 51395 sq.mtrs. of survey No. 122 paiki which clearly provides that respondent No.6-father purchased from Tarsibhai Jorbhai and thereafter he sold 50000 sq.mtrs. to the respondents herein. Further, the remaining 1395 sq.mts. of land have been sold to Maganbhai Rupawel by executing a sale deed in the year 2002 where respondents Nos. 1-5 have been confirming party.
Therefore, it was never a case even by respondent No.6 or the appellants plaintiffs Nos.1-2 who are signatory to some of the documents like power-of-attorney that it was an ancestral or a joint property. Therefore, the appellants now cannot be permitted to have a total volte-face to serve their purpose merely because the document of 1965 is not registered. Further, even for the purpose of Registration Act, it will have to be considered in light of the statutory provisions as to what would be the consequences.
A useful reference can also be made to the judgment of the Hon ble Apex Court in the case of S. Kaladevi (supra). The Hon ble Apex Court referring to this aspect of registration under sec. 19 of the Registration Act has considered specifically the effect of non-registration of a document and it has been specifically observed, The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument...
Thereafter, the Hon ble Apex Court has also analysed the ratio and it is in this background the contention about non-registration of the 1965 document that it is not registered and therefore it cannot be considered at all and therefore there is no document or title in favour of respondents 1-5 is misconceived. Therefore, the appellants cannot be permitted to take a stand to suit their purpose for the purpose of making a claim by raising such a bogey of ancestral property or HUF property contrary to the material and evidence on record.
18. It is in these circumstances, as discussed in detail by the Court below, it cannot be said that there is any error which would call for interference in the present Appeal from Order. It is well-accepted that normally the appellate court would not interfere with the discretionary orders, and in the facts and circumstances of the present case, the order cannot be said to be erroneous, much less perverse. Therefore, having regard to the well-accepted principles and considering the fact that the court below has considered all the aspects including the criteria for grant of injunction, the impugned order is just and proper and it does not call for interference in the present Appeal from Order. The present Appeal from Order, therefore, deserves to be dismissed and accordingly stands dismissed.
19. In view of dismissal of the Appeal from Order, the civil application does not survive and it accordingly stands disposed of.
(RAJESH H.SHUKLA, J.) (hn) Page 14 of 14