Gujarat High Court
Bhikhubhai Ranchhodbhai Dabhi vs Mohanbhai Chhimkabhai Patel & 13 on 8 May, 2015
Author: A.J.Desai
Bench: A.J.Desai
C/AO/296/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 296 of 2011
With
CIVIL APPLICATION NO. 8595 of 2011
In
APPEAL FROM ORDER NO. 296 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
================================================================
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 or any order made thereunder ?
================================================================
BHIKHUBHAI RANCHHODBHAI DABHI....Appellant(s)
Versus
MOHANBHAI CHHIMKABHAI PATEL & 13....Respondent(s)
================================================================
Appearance:
MR SHIRISH SANJANWALA SENIOR ADVOCATE WITH MR DILIP L
KANOJIYA, ADVOCATE for the Appellant(s) No. 1
MR AB MUNSHI, ADVOCATE for the Respondent(s) No. 14
MR AJ SHASTRI, ADVOCATE for the Respondent(s) No. 8 - 13
MR RR MARSHALL SENIOR ADVOCATE WITH MS. SHAILI A KAPADIA,
ADVOCATE for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 08 / 05 /2015
Page 1 of 11
C/AO/296/2011 CAV JUDGMENT
CAV JUDGMENT
1.0 By way of present appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 ( hereinafter referred to as 'the Code'), the appellant- original defendant no.1 has challenged the judgement and order dated 14.07.2011 passed below Exh. 5 in Special Civil Suit No. 276 of 2009 by the learned 4 th Additional Senior Civil Judge, Surat, by which, the learned Civil Judge has partly allowed the application (Exh. 5) filed under Order 39 Rule 1 of the Code by respondents no.1 to 7( original plaintiffs) directing all the parties to maintain 'status quo' with regard to disputed property/land till the final disposal of the suit.
2.0 The appeal came to be admitted by the co-ordinate bench of this Court vide dated 16.08.2011, however, no order, in favour of the present appellant, staying the operation of the impugned order is passed in the matter. 3.0 The brief facts arose from the record are as under:
3.1 That one Hansjibhai Kalabhai was owner and occupier of a land being Survey No.126 ( Old Survey No. 233) at Village Vesu of District Surat.
Subsequent to death of said Hansjibhai Kalabhai, his three sons namely Chhimkabhai, Lallubhai and Mangubhai became the joint owners of the land/property and accordingly the names were mutated in the revenue record with regard to the said land/property. It is the case of the plaintiffs that the said land was never partitioned and was never divided between three brothers and therefore, each son had the 1/3rd share in the said property. Respondents No. 1 Page 2 of 11 C/AO/296/2011 CAV JUDGMENT to 3 ( original plaintiffs no. 1 to 3) are legal heirs of Chhimkabhai Hansjibhai and respondents no. 4 to 7 (original plaintiffs no. 4 to 7) are the legal heirs of Lallubhai Hansjibhai Respondents no. 8 to 14 ( original defendants no. 2 to 8) are legal heirs of Mangubhai Hansjibhai. It is the case of the plaintiffs that for the internal arrangement of all the brothers, they have demarcated the land for cultivation purpose in three parts. It is also the case of the plaintiffs that 1/3rd share belonged to the branch of Mangubhai Hansjibhai was agreed to sell to plaintiff no.1 on 29.09.1997 and agreement to sale was executed by original defendant no.2. Thereafter that part of the land is being cultivated by the plaintiffs and the revenue fees have been paid by the plaintiffs. 3.2 It is the case of the plaintiffs that on or about 31.01.2007, the plaintiffs received a notice from Revenue Department under Section 135(d) of the Bombay Land Revenue Code for the change in the revenue record for mutating the name of original defendant no.1 (present appellant). Having received the same, the plaintiffs inquired into the matter and came to know that original defendants no. 2 to 8 had allegedly executed a power of attorney in favour of one Pareshbhai Lavjibhai Patel, who on the basis of the said power of attorney had sold the property to the present appellant. Only at that time, the plaintiffs came to know that the sale-deed executed by the power of attorney in favour of the appellant that the same was registered with Sub Registrar and another corrected sale-deed was registered with the Sub Registrar, Surat on 02.09.2006.
3.3 Having come to know all these aspects, and on the ground that the defendants no.2 to 8 had already sold the property to the plaintiffs, a Special Page 3 of 11 C/AO/296/2011 CAV JUDGMENT Civil Suit No. 276 of 2009 came to be filed in the Court of learned Principal Senior Civil Judge, Surat. Therefore, the plaintiffs had filed above suit for decree of specific performance against defendants no. 2 to 8 executing sale- deed in favour of the plaintiffs since the agreement to sale was entered into between the parties in the year 1997. Permanent injunction against all the defendants, for not disturbing the possession of the suit property, has also been prayed. The plaintiffs have prayed for decree of declaration that sale-deed executed in favour of the appellant- original defendant no.1 by so called power of attorney of defendants no. 2 to 8 is illegal and void. Similarly subsequent corrected sale-deed which is registered on 02.09.2006 is also challenged in the suit.
3.4. The plaintiffs also filed an application under Order 39 Rule 1 of the Code and made several prayers. It was prayed that the defendant no. 1 shall not be permitted to further sell, transfer, alienate the disputed property since the plaintiffs have their undivided share in the property. Another prayer was also made that the possession of the property shall not be disturbed during the pendency of the suit. Pursuant to the summons issued by the Court, the appellant- original defendant no.1 filed a written statement and opposed the suit. The appellant- original defendant no.1 had opposed the grant of any interim relief by filing affidavit-in-reply. The contentions raised by the plaintiffs have been denied in the written statement. The question of limitation with regard to specific performance has also been raised by the appellant-defendant no.1. It is say of the defendant no. 1 that he has paid the consideration i.e. market price of the property to the power of attorney which was executed by defendants no. 2 to 8. The appellant-defendant no.1 has denied any existence Page 4 of 11 C/AO/296/2011 CAV JUDGMENT of any agreement to sale between the plaintiffs and defendants no. 2 to 8. 4.0 The learned Civil Judge after considering the pleadings, documents on record and submissions made by the parties, partly allowed the application and directed the parties of the proceedings to maintain status quo with regard to disputed land till the suit is finally decided.
5.0 Hence, this appeal.
6.0 Mr. Shirish Sanjanwala,learned Senior Advocate assisted by Mr. Dilip Kanojiya, learned advocate appearing for the appellant would submit that the learned trial Court has erred in directing the parties to maintain status quo till the suit is finally decided since the suit itself is hopelessly time barred and has been filed with ulterior motive. He would submit that the sale-deed is registered way back in the year 2006. The suit is filed in the year 2009 that is after expiry of period of limitation prescribed under the law. He would submit that the learned trial Court ought to have considered that the land has been purchased by the appellant by paying market price and the same has been duly registered with competent authority. He would submit that the alleged agreement to sale which was executed by defendants no. 2 to 8 in favour of plaintiffs is on 29.09.1997 which is now sought to be asked to be got executed into a sale- deed i.e. plaintiffs have prayed for decree of specific performance, hopelessly time barred and therefore, the learned trial Court ought not to have granted any order in favour of the plaintiffs including the order of status quo. In support of his submission he has relied upon the decision of the Hon'ble Supreme Court reported in (1) AIR 1964 SC 1336 (2) AIR 1970 SC 716 and (3) 2004 (11) SCC
425. Page 5 of 11 C/AO/296/2011 CAV JUDGMENT 7.0 He would further submit that the learned trial Court ought to have dismissed the suit itself by exercising powers under Order7 Rule 11 of the Code of Civil Procedure, since the suit was barred by limitation. 8.0 When the plaintiffs have challenged the sale-deed dated 13.01.2006 and 02.09.2006 in the suit, the said has been filed by 24.08.2009 and therefore, also the suit is time barred. Therefore, the learned trial Court ought not to have entertained the application and granted any relief in favour of the plaintiffs. 9.0 He therefore, submits that appeal may be allowed and the order impugned in the appeal be quashed and set aside.
10.0 On the other hand, Mr. RR Marshall, learned Senior Advocate assisted by Ms. Shaili Kapadia, learned advocate appearing for respondent no.1 (original plaintiff no.1) would submit that the disputed land is an ancestral property. The land was never partitioned between the brothers, however, the legal heirs of Mangubhai Hansjibhai Patel and particularly widow of Mangubhai had agreed to sale the 1/3rd share to him since plaintiff no. 1 was cultivating the land since for years together. The physical possession is of the plaintiff no. 1. Since the relations between all family members were harmonious, the sale- deed was not executed by legal heir of Mangubhai Hansjibhai Patel. He would further submit that none of the branch of Hansjibhai Patel have prayed for partition of property but it was an understanding between them of having the 1/3rd share of each of the brothers. He would submit that even the so-called sale-deed which has been executed by power of attorney in favour for the Page 6 of 11 C/AO/296/2011 CAV JUDGMENT appellant, does show, any details and boundaries and with regard to the 1/3rd part of the land. The sale-deed does not make it clear that which part of the land has been sold in favour of the present appellant. He would submit that when the Court Commissioner was appointed at the instance of the plaintiffs, a panchnama was drawn which does not disclose anything about the possession of the land/property of any of the original defendants and therefore, the trial Court has rightly observed that though there might be 1/3rd share belonging to Mangubhai Hansjibhai but in absence of another cogent evidence with regard to the partition of the land which the original defendants claims, the trial Court has directed all the parties to maintain status quo which does not call for any interference of this Court.
11.0 As far as question of limitation is concerned, by taking me through the plaint and particularly paragraphs no. 8, 9 and 10 of the plaint, he would submit that the sale-deed which is registered one executed in favour of the appellant is subsequently corrected in the month of September 2006 and before the expiry of three years, the suit came be filed in the month of August 2009 and therefore, there is no question of bar of limitation, since the same is filed within the prescribed time. As far as specific performance with regard to the agreement to sale dated 29.09.1997 is concerned, he would submit that it is the case of the plaintiffs, that there was a mutual understanding between the family member with regard to the 1/3rd share of Mangubhai Hansjibhai who agreed to sell his share in favour of the plaintiffs, the sale-deed could not be executed and therefore, conveyance was not made, however, the same can be considered at the time of the trial and that aspect cannot be decided when the application under Order 39 Rule 1 of the Code is under consideration of a Page 7 of 11 C/AO/296/2011 CAV JUDGMENT Court. He would submit that if the order of status quo is lifted and if the present appellant is permitted to sell, transfer or alienate or to deal with the land in any other manner, there would be irreparable loss and would be multiplicity of litigation. When the original plaintiff was able to establish his prima facie case, the trial Court has not committed any error in passing the order. He therefore would submit that the appeal be dismissed.
12.0 Mr. AB Munshi, learned advocate appearing for respondent no. 14- original defendant no. 8 - Shobhnaben d/o Mangubhai Hansjibhai Patel would submit that having come to know about the claim made by the plaintiffs in the present suit, said Shobhnaben had filed a suit being Special Civil Suit No. 489 of 2011 in the Court of learned Principal Senior Civil Judge, Surat against the legal heir of Hansjibhai Kalabhai and other persons and has claimed her own independent right in the disputed land/property. She has also challenged the sale-deed of 2006 which is registered in favour of present appellant. The present appellant is original defendant no.8 in the said suit. She has challenged the agreement to sale of 1997 etc. and has asked for several reliefs including claiming her share in the land as well as prayed that the sale-deed of 2006 in favour of present appellant be declared as null and void. He would also therefore, submit that if the appellant is permitted to deal with the land/property in any of the manner, the rights of the legal heir of Mangubhai would be affected and therefore, requested that the appeal may be dismissed. 13.0 I have heard learned advocates appearing for the parties. As far as argument advanced by Mr. Sanjanwala, learned Senior Advocate for the appellant with regard to the question of limitation is concerned, and particularly Page 8 of 11 C/AO/296/2011 CAV JUDGMENT with regard to the decree of specific performance is concerned. This Court would not like to deal with the same aspect in detail at this stage, since the plaintiffs have also asked for alternative relief/s i.e. declaration with regard the legality of the registered sale-deed of 2006 and may prejudice to the rights of either of the parties and also in view of the suit filed by one of the legal heir of Mangubhai which is pending for hearing before the competent Court. 14.0 As far as the question of limitation with regard to challenge of the registered sale-deed is concerned, it is an undisputed fact that the sale-deed which is registered in the year 2006 was subsequently corrected in the month of September 2009 and the suit has been filed in August 2009. Therefore, prima facie, I am of the opinion that suit was filed within a period of three years however, these observations would not be binding. It is needless to say that this tentative observations would not be binding when the learned trial Court finally decides the rights of the parties and claim made by the plaintiffs. 15.0 Now considering the prima facie case, balance of convenience and irreparable loss are concerned, I have perused the record. The agreement of 1997 entered into between the original defendants no. 2 to 8 and plaintiff no. 1 and the revenue record suggests that the land as well as report of the Commissioner whether the possession is with the present appellant or not is not clearly established. It is also pertinent to note that the said sale-deed also does not disclose that which part of the disputed land is sold in favour of the appellant since the same is not demarcated.
16.0 The Commissioner Report also does not support the case of the Page 9 of 11 C/AO/296/2011 CAV JUDGMENT appellant that he is in exclusive possession of particular part of the land which he is alleged to have purchased through power of attorney. 17.0 In such circumstances, I am of the opinion that if the status of the land/ property is changed during the pendency of different suits pending before the Court between different parties, there would be serious prejudice to the rights of legal heirs of branch of deceased Hansjibhai Kalabhai. Even otherwise if the parties are directed to maintain status quo till the suit is finally heard, no irreparable loss would be there to the present appellant-original defendant no.1. 18.0 I have also considered the fact that the present appeal is pending since 2011 and it is the fact that parties are maintaining status quo with regard to the land/property and therefore, I would like to direct the learned trial Court to dispose of the suit in expeditious manner.
19.0 Considering the overall facts and circumstances of the case, I am of the opinion that the appeal is meritless and deserves to be dismissed. Accordingly the appeal is dismissed. However, the learned trial Court is hereby directed to expedite the hearing of Special Civil Suit No. 276 of 2009 pending before it as expeditiously as possible preferably within a period of one year from the date of the receipt of the order.
20.0 In view of dismissal of appeal, Civil Application would not survive and the same is dismissed accordingly. Notice is discharged.
(A.J.DESAI, J.) Page 10 of 11 C/AO/296/2011 CAV JUDGMENT niru* Page 11 of 11