Gujarat High Court
Hiralal Narsinhbhai Hadakiya Through ... vs Gokulbhai Samubhai Patel & 25 on 11 September, 2014
Author: S.H.Vora
Bench: S.H.Vora
C/AO/315/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 315 of 2010
With
CIVIL APPLICATION NO. 1939 of 2012
In
APPEAL FROM ORDER NO. 315 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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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 ?
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HIRALAL NARSINHBHAI HADAKIYA THROUGH POA BIKEN I JAGIWALA &
3....Appellant(s)
Versus
GOKULBHAI SAMUBHAI PATEL & 25....Respondent(s)
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Appearance:
MR PERCY KAVINA FOR MR SHITAL R PATEL, ADVOCATE for the
Appellant(s) No. 1 - 4
DELETED for the Respondent(s) No. 26
MR ANUJ K TRIVEDI, ADVOCATE for the Respondent(s) No. 15 - 25
MR ASPI M KAPADIA, ADVOCATE for the Respondent(s) No. 1
MR P P MAJMUDAR, ADVOCATE for the Respondent(s) No. 2 , 5 , 8 , 11
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 2 , 5 , 8 , 11
Page 1 of 30
C/AO/315/2010 CAV JUDGMENT
NOTICE SERVED BY DS for the Respondent(s) No. 3 - 4 , 7 , 9 - 10
RULE SERVED for the Respondent(s) No. 6 , 12 - 14 , 19 - 25
VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 2 - 5 , 7 - 11
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 11/09/2014
CAV JUDGMENT
1. Challenge in the present Appeal from Order preferred under Order 43 Rule 1(r) of the Code of Civil Procedure (for short, the 'Code') is the order dated 31.08.2010 passed by the learned Principal Senior Civil Judge, Surat below Exh.5 in Special Civil Suit No.301 of 2006 whereby, the learned trial Judge granted relief in terms of para 16(1) of the injunction application whereby, the respondent No.1 - original plaintiff has prayed to restrain the defendants from transferring, selling or changing identity and disturbing the plaintiff's right and interest in respect of the land bearing Revenue Survey No.490, New Revenue Survey No.299/3 admeasuring 23200 sq.mtr. situated at village: Vesu, Taluka: Choryasi, District: Surat (for short, the 'suit land').
2. The parties to the present proceedings would be referred to as per their original status in the plaint for convenience.
3. Learned advocates appearing for the respective parties placed on record written declaration dated 24.07.2014 to the effect that the impugned order dated 31.08.2010 passed by the trial court is construed to be a common order passed below Exh.5 as well as Exh.116 granting injunction against the Page 2 of 30 C/AO/315/2010 CAV JUDGMENT defendants. Accordingly, the present Appeal from Order is considered as a common order passed below Exhs.5 and 116 with the consent of the learned advocates for the respective parties. The said declaration is ordered to be taken on record.
4. Filtering unnecessary details and considering the scope of appeal preferred under the provisions of Order 43 Rule 1(r) of the Code, facts as asserted in the injunction application preferred below Exh.5 and argued before the Court can be stated thus:-
4.1. It is the case of the plaintiff that the suit land was purchased by his father on 07.01.1964 by Registered Sell Deed. Upon demise of the plaintiff's father, namely, Mr.Samubhai Patel, legal heirs of said deceased - Mr.Samubhai Patel, namely, his widow - Smt.Maniben, his four daughters -
Ms.Kusumben, Ms.Kamuben, Ms.Vanitaben and Ms.Vidhyaben relinquished their share in the suit land in favour of the plaintiff and with reference to this fact, necessary revenue entry came to be mutated in the revenue records vide Entry No.824 on 29.06.1976. Thus, the plaintiff became sole and exclusive owner of the suit land. One another land situated in village:
Vesu, bearing Revenue Survey No.485 admeasuring 17 Acre 15 Guntha was belonging to plaintiff's grandfather, namely, Mr.Lalabhai Ramjibhai. Upon demise of Mr.Lalabhai, plaintiff's father - Mr.Samubhai and also Mr.Lakhubhai and Mr.Dahyabhai became owners and occupiers of the said land bearing Revenue Survey No.485. Upon demise of plaintiff's father i.e. Mr.Samubhai, as legal heirs of Mr.Samubhai, names of the plaintiff, his mother and four sisters were entered in the Page 3 of 30 C/AO/315/2010 CAV JUDGMENT revenue records vide Entry No.824 dated 29.06.1976.
Similarly, names of the other legal heirs of deceased - Mr.Lalabhai were also entered in the revenue records. Admittedly, both the lands, namely, the suit land and the land bearing Revenue Survey No.485 were under reservation under the Urban Land Ceiling Act, 1976 (for short, the ' ULC Act'). Deceased husband of defendant No.11, namely, Mr.Champakbhai Thakorbhai and also defendant No.10 - Mr.Shamjibhai Ramjibhai Kevadia have approached the plaintiff and they informed the plaintiff that they are conversant with the processes of getting the lands cleared from the provisions of the ULC Act. Relying upon both these persons and other co-sharers, the plaintiff entered into two different Agreements to Sell the suit land and land bearing Revenue Survey No.485 in favour of deceased - Mr.Champakbhai Thakorbhai on 01.03.1989 and on 13.02.1987 respectively. It is the case of the plaintiff that deceased - Mr.Champakbhai Thakorbhai misrepresented before the plaintiff and his mother and got two Power of Attorneys in respect of the land bearing Revenue Survey No.485. One Power of Attorney was executed by the co-sharer of the other branch and the second Power of Attorney was executed by the plaintiff - Mr.Gokulbhai and his mother in the month of January, 1989. It is the specific case and allegation of the plaintiff that no Power of Attorney was executed by the plaintiff for the suit land but Power of Attorney given by the plaintiff for Revenue Survey No.485 was fabricated by deceased - Mr.Champakbhai Thakorbhai in collusion with defendant No.10 - Mr.Shamjibhai Ramjibhai by subsequently inserting the description of the suit land. It is specific case of the plaintiff that upon comparing two Power of Attorneys, Page 4 of 30 C/AO/315/2010 CAV JUDGMENT interpolation of the suit land becomes apparent. The fabrication/interpolation is carried out in the last page of the Power of Attorney i.e. in the schedule. Thus, this fact can be seen from the fact that on internal page 2 and in the schedule on internal page 6, word used is 'milkat' which denotes a singular property and not two different parcels of land. Upon comparison of the schedules of two Power of Attorneys, it can be easily noticed that in description of the land bearing Revenue Survey No.485 in the first para of the schedule, just after the full stop, a comma is apparently seen to be inserted. Thus, mark full stop was converted into comma. The further fabrication is very apparent upon visual inspection. After the comma, the words 'tatha 490 paiki acre 5 - 29 guntha wali jameen' are typed. In nutshell, it is the specific allegation of the plaintiff that the factum of subsequent insertion is very apparent upon visual inspection and, therefore, it clearly stands established that the description of the suit land has been subsequently inserted by fabrication of the original Power of Attorney given by the plaintiff for Revenue Survey No.485. Further, both the Power of Attorneys which were given by different branches, were executed in the month of January, 1989. As the sale agreement for the suit land was executed on 01.03.1989, deceased - Mr.Champakbhai and defendant No.10 in the schedule has scored off the word 'January' and have instead typed 'March' over it. It is the case of the plaintiff that the date was blank in the original Power of Attorney whereas, in the fabricated Power of Attorney, date '29th' is added. It is further case of the plaintiff that the signature of the plaintiff's minor son, namely, Poonam is forged and added. In the year 1989, plaintiff's son - Poonam was aged about 8 years and signatures of the plaintiff's sisters were also forged. Thus, it is Page 5 of 30 C/AO/315/2010 CAV JUDGMENT the case of the plaintiff that the Power of Attorney given by the plaintiff for Revenue Survey No.485 was tempered with and fabricated by said deceased - Mr.Champakbhai without knowledge and at the back of the plaintiff by adding/inserting the description of the suit land in the schedule contained in the Power of Attorney. On the basis of the fabricated Power of Attorney, deceased - Mr.Champakbhai executed three sale deeds in favour of the defendant Nos.1 to 10. Out of these three sale deeds, one is dated 21.04.2001 and two others are dated 23.04.2001.
4.2. It is the case of the plaintiff that he was not aware about the execution of the aforesaid three sale deeds and in the year 2003, defendant Nos.1 to 10 filed collusive suit being Regular Civil Suit No.439 of 2003 in the Civil Court at Surat. The said suit was filed by the defendant Nos.1 to 10 against the plaintiff through his Power of Attorney - Mr.Champakbhai Thakorbhai. It is the case of the plaintiff that in the said suit, the plaintiff was not made party defendant in his individual capacity and no notice/summons was served upon him. As the plaintiff came to know about the aforesaid collusive suit and also the fact of execution and registration of the said three sale deeds in favour of the defendant Nos.1 to 10 in the beginning of the month of December, 2003, the plaintiff got issued a public notice in the newspaper on 02.12.2003, inter alia, stating that deceased - Mr.Champakbhai and defendant No.10 - Mr.Shamjibhai in collusion, forged the Power of Attorney and said three sale deeds which were executed on the basis of such Power of Attorney are null and void. Similarly, the plaintiff has also made an application for his impleadment as defendant in the said Regular Civil Suit No.439 of 2003 Page 6 of 30 C/AO/315/2010 CAV JUDGMENT wherein, averments were made as to how Power of Attorney in respect of the land bearing Revenue Survey No.485 was fabricated. It is the case of the plaintiff that deceased - Mr.Champakbhai opposed the plaintiff's application for being impleaded as party defendant in the suit and, therefore, this act of deceased - Mr.Champakbhai raises serious suspicion and doubts and lends supports to the say of plaintiff that Power of Attorney is forged one. In the said suit, the defendant Nos.1 to 10 and deceased - Mr.Champakbhai moved an application on 12.01.2004 below Exh.30 seeking a compromise decree of the suit land. As the plaintiff's application for impleadment was pending and as the plaintiff raised objections, the trial Court refused to record the compromise.
4.3. It is further case of the plaintiff that his four sisters supported the plaintiff's allegation that the purported signatures of the plaintiff's sisters contained in the Power of Attorney are not put in by them, but are forged. Though the defendant Nos.1 to 10 i.e. plaintiffs of said Regular Civil Suit No.439 of 2003 made an application Exh.39 to the Court requesting for unconditional withdrawal of the said suit and though the Court made an endorsement 'Allowed to withdraw' but despite the said order, the trial court passed a consent decree recording that the the defendant Nos.1 to 10 have become owners of the suit land by virtue of the sale deeds executed and registered in the year 2001. All these series of events and the stands taken in the said proceedings, clearly demonstrate apparent collusion between the defendant Nos.1 to 10 and deceased - Mr.Champakbhai with ulterior motive to defraud the plaintiff. It is the case of the plaintiff that as the Page 7 of 30 C/AO/315/2010 CAV JUDGMENT plaintiff's application Exh.20 to join him as party in the said suit remained undecided till the trial court allowed to withdraw the suit, the plaintiff was constrained to file the present Special Civil Suit No.301 of 2006, inter alia, praying to set aside the three sale deeds executed in the year 2001 for a declaration that the said sale deeds are not binding to the plaintiff on the ground that the Power of Attorney on the basis of which, the said sale deeds are executed and registered, is forged and fabricated and he also prayed for declaration that the compromise decree passed in Regular Civil Suit No.439 of 2003 is fraudulent and illegal and not binding to the plaintiff. The plaintiff has also sought declaration regarding invalidity of the forged Power of Attorney. The plaintiff, after amending the plaint in the year 2013, prayed for the relief that the plaintiff be put back in possession of the suit land from which he was dispossessed in the month of January - February, 2008.
4.4. It is the case of the plaintiff that despite pendency of the said suit and the plaintiff's claim that the Power of Attorney and the sale deeds of 2001 are forged and fraudulent, the defendant Nos.14 to 17 i.e. the appellants herein, purchased the suit land from defendant Nos.1 to 10 by executing two registered sale deeds in the month of December, 2007 and as the defendant Nos.18 to 29 having been joined as answering defendants, they were signatories in the sale deeds executed in the month of December, 2007 in favour of the defendant Nos.14 to 17 as confirming parties. In nutshell, after joining defendant Nos.14 to 29, the plaintiff moved an application Exh.116 and sought injunction against the defendant Nos.14 to 17 i.e. the present appellants from further transferring or alienating the suit land till final disposal of the suit.
Page 8 of 30 C/AO/315/2010 CAV JUDGMENT5. Per contra, it is the case of the defendants that the plaintiff has filed false and frivolous suit. It is not in dispute that the plaintiff has executed Agreement to Sell on 01.03.1989 in respect of the suit land for total consideration of Rs.11 lacs. The mode and manner of payment made and received by the plaintiff is shown in the sale agreement and accordingly, the plaintiff received the full amount of sale price and acknowledged the same on the back side of the sale agreement and thus, the plaintiff received the entire consideration of Rs.11 lacs. It is specific defence of the defendants that three Power of Attorneys (annexed at page Nos.57 to 76) were executed. Three Power of Attorneys were executed for Survey No.485, out of which, two for 1/3 share and third Power of Attorney for the rest of 1/3 share of Survey No.485 and for the suit land. It is the case of the defendants that the plaintiff has produced incomplete version of Power of Attorney as if the plaintiff gave power only in respect of the land bearing Survey No.485 and not in respect of the suit land. On the basis of the Power of Attorney dated 29.03.1989 executed by the plaintiff, his sisters and his son in respect of the suit land, deceased - Mr.Champakbhai conducted the proceedings before the ULC authority after March, 1989 onwards. The entire correspondence/procedures for both the lands, namely, Revenue Survey No.485 and the suit land, conducted before the ULC authority by deceased - Mr.Champakbhai as Power of Attorney holder of the plaintiff from March, 1989 onwards till August, 1999. It is the case of the defendants that upon execution and registration of the three sale deeds in favour of the defendant Nos.1 to 10, mutation entries were entered and certified. It is stated by the Page 9 of 30 C/AO/315/2010 CAV JUDGMENT defendants, more particularly, defendant Nos.1 to 10 that the suit is barred by law of limitation and since the execution of the sale deeds in the year 2001, defendant Nos.1 to 10 came into possession and on the date of suit, defendant Nos.1 to 10 were in possession and since relief of possession is not sought by the plaintiff, the suit would not remain maintainable under the law. It is further stated that the plaintiff and other co- owners executed Power of Attorney in favour of deceased - Mr.Champakbhai for the land bearing Survey No.485 and the suit land. As per the agreement to sale, deceased - Mr.Champakbhai paid consideration of the land bearing Survey No.485 to the plaintiff and other co-owners and thus, on the basis of the Agreement to Sell and Power of Attorney, deceased - Mr.Champakbhai became sole and exclusive owner and occupier of the suit land and the land bearing Revenue Survey No.485. On the basis of the Power of Attorney executed by the plaintiff, deceased - Mr.Champakbhai got necessary permission from the concerned authority and got both the lands cleared from the provisions of ULC Act. Thereafter, plottings were made on the land bearing Survey No.485 and plots were sold in the year 2003 by registered sale deeds and possession of all the plots was given to each plot holder. Similarly, deceased - Mr.Champakbhai also sold the suit land on the basis of the Power of Attorney and obtained total consideration of the land from defendant Nos.1 to 10.
6. Defendant Nos.11 to 14 have also filed their written statements at Exh.41 before the trial court wherein, they have denied that the plaintiff and defendant Nos.1 to 10 have any right, title or interest in the suit land. According to them, deceased - Mr.Champakbhai had no personal interest in the Page 10 of 30 C/AO/315/2010 CAV JUDGMENT suit land and, therefore, for the act of deceased - Mr.Champakbhai, defendant Nos.11 to 14, cannot be blamed and thus, the plaintiff has no cause of action to get any relief against them. Whereas, defendant Nos.14 to 29 have filed their written statement at Exh.72 before the trial court wherein, they have contended that the plaintiff has no right or cause of action to file the suit or injunction application and suit and injunction application are barred by delay and laches, acquiescence and estoppel. Further, the suit is also barred by law of limitation. It is specific case of the said answering defendants that the plaintiff legally gave Power of Attorney in favour of deceased - Mr.Champakbhai Thakorbhai and, therefore, transactions made by deceased - Mr.Champakbhai are legal and binding to the plaintiff. The said answering defendants specifically denied the allegation of forgery of Power of Attorney for the suit land or any manipulation made in the said Power of Attorney, as alleged in the plaint. While denying each and every allegation/averment made by the plaintiff in the injunction application, the answering defendants submitted that the plaintiff is not entitled to get injunction, as prayed for.
7. Upon perusal of the pleadings and after hearing the submissions made at bar before the trial court, the learned trial Judge passed the impugned order and, therefore, the present appeal is preferred by the defendant Nos.14 to 18.
8. I have heard submissions made by learned Senior Counsel Mr.Percy Kavina appearing for learned advocate Mr.S. R. Patel for the appellants - original defendant Nos.14 to 18, learned advocate Mr.Aspi Kapadia for respondent No.1 -
Page 11 of 30 C/AO/315/2010 CAV JUDGMENToriginal plaintiff and learned advocate Mr.S.P. Majmudar for the reset of the defendants and also considered the written submissions made by the plaintiff and defendant Nos.14 to 18.
9. The first and foremost contention raised by learned Senior Counsel Mr.Kavina is such that the Registered Sell Deeds executed in the month of April, 2001 and also necessary entries in the revenue records were entered in the year 2001 itself, still however, the present suit is filed by the plaintiff on 26.09.2006 after gross delay. It is submitted that the registration is a deemed notice and the limitation will commence from such deemed notice. In support of the said contention, learned Senior Counsel Mr.Kavina pressed into service the principles laid down in the case of Dilboo (Smt) (Dead) By LRs. and others V/s. Dhanraji (Smt)(Dead) and others reported in (2000)7 SCC 702 and in the case of Becharbhai Zaverbhai Patel and another V/s. Jashbhai Shivabhai Patel and others reported in 2013(1) GLR 398. It is further submitted that the plaintiff has approached the Court at belated stage and, therefore, the equitable relief of injunction cannot be granted to the plaintiff, who approaches the Court after great delay and for that purpose, learned Senior Counsel Mr.Kavina has relied upon the decision in the case of Dalpat Kumar and another V/s. Prahlad Singh and others reported in AIR 1993 SC 276, State of Maharashtra V/s. Digambar reported in (1995)4 SCC 683 and in the case of Veetrag Holding Co.Ltd. V/s. Gujarat State Textile Corporation Ltd. reported in 1996(3) GLR 536. It is further submitted that the plaintiff has not come to the Court with clean hands inasmush as though the plaintiff has received entire sale consideration of Rs.11 lacs as per Agreement to Sell and Page 12 of 30 C/AO/315/2010 CAV JUDGMENT further, the said sale agreement is not in dispute, the learned trial Judge has committed error in observing prima facie case or irreparable loss in favour of the plaintiff. It is further submitted that when the plaintiff has, in terms, admitted that he has executed sale agreement in respect of the land bearing Revenue Survey No.485 and also the suit land but disowned the Power of Attorney of 1989 in respect of the suit land after December, 2003 is highly improbable and unbelievable. According to learned Senior Counsel Mr.Kavina, the plaintiff has not pleaded ignorance about the fact that the land was covered under the reservation of ULC Act and it is because of efforts of deceased - Mr.Champakbhai, the suit land and the land bearing Revenue Survey No.485 were brought back from the clutches of the ULC Act by long drawn correspondence with the ULC authorities. In this connection, learned Senior Counsel Mr.Kavina drawn my attention towards one communication dated 07.08.1991 addressed by the ULC authorities to deceased - Mr.Champakbhai which was also served to the plaintiff. Meaning thereby, the competent authority specifically addressed communication to deceased - Mr.Champakbhai as Power of Attorney holder of the plaintiff in respect of both the lands and thus, the communication which is not in dispute, would go to indicate that the plaintiff has a direct notice/knowledge about the factum of deceased - Mr.Champakbhai holding and acting as plaintiff's Power of Attorney and as a Power of Attorney holder of the plaintiff, deceased - Mr.Champakbhai has conducted proceedings with the ULC authorities. It is further submitted that deceased - Mr.Champakbhai undertook various procedure with the ULC authority in respect of both the lands and not a single correspondence after execution of Power of Attorney in favour Page 13 of 30 C/AO/315/2010 CAV JUDGMENT of deceased - Mr.Champakbhai has been done by the plaintiff. On these broad submissions, learned Senior Counsel Mr.Kavina submitted that the learned trial Judge has committed grave error in granting injunction application preferred at the instance of the plaintiff and he, therefore, submitted to accept and allow the present appeal.
10. While reiterating the facts as asserted in the plaint, as produced hereinabove, it is submitted by learned advocate Mr.Kapadia that the learned trial Judge has rightly granted injunction against the defendants pending hearing of the suit. It is submitted that the trial court by its order dated 31.08.2010, granted injunction in favour of the plaintiff and against the defendants restraining them from transferring or alienating the suit land pending hearing of the suit as the defendant Nos.14 to 18 purchased the suit land pendente lite in the year 2007 despite the fact that lis pendence notice was registered and the said defendants were also warned by the reply given by the plaintiff's advocate not to purchase the suit land as the suit was pending. It is submitted by learned advocate Mr.Kapadia that the suit is within the period of limitation and the said aspect is considered by the learned trial Judge in the impugned order. Moreover, the defendant Nos.14 to 18 - present appellants filed an application under Order 7 Rule 11 of the Code praying for rejection of the plaint on the ground that the suit is time barred. Such application has been rejected by the trial court by its reasoned order dated 31.07.2013 and, therefore, issue of limitation is a mixed question of fact and law and would require evidence to conclusively decide the same. Therefore, according to learned advocate Mr.Kapadia, there is no substance in the argument so advanced that as the suit is barred by law of limitation, the Page 14 of 30 C/AO/315/2010 CAV JUDGMENT learned trial Judge ought not to have granted injunction. It is submitted that there is no delay or laches because the plaintiff has immediately moved an application before the trial court in one collusive suit filed by the defendant Nos.1 to 10 and upon withdrawal of the said suit, the plaintiff was constrained to file the present suit and, therefore, it cannot be said that the plaintiff remained inactive or did not take any action to protect his rights. Learned advocate Mr.Kapadia further contended that the suit is filed within three years as provided under Article 59 of the Limitation Act because the plaintiff came to know about execution of the three sale deeds of 2001 in December, 2003 only and, therefore, considering the provisions contained under Section 17 of the Limitation Act and further considering the fact that the suit is based upon fraud of the husband of defendant No.11 and also defendant No.10, the period of limitation would not begin to run until the plaintiff has discovered the fraud. Learned advocate Mr.Kapadia has further submitted that considering the provisions of Section 3 of the Transfer of Property Act and also proviso to explanation III contained therein, it is evident that the plaintiff was the owner of the property and there was no reason to apprehend that the fraud was committed upon him and there is no willful abstinence or gross negligence can be imputed upon the plaintiff. It is submitted that the entire correspondence was written by the ULC authority to deceased
- Mr.Champakbhai as the Power of Attorney holder and not a single communication is addressed to the plaintiff and, therefore, the plaintiff was unaware of such communication addressed by the ULC authority and, therefore, the reference made by learned Senior Counsel Mr.Kavina to such correspondence cannot be construed to come to a finding that Page 15 of 30 C/AO/315/2010 CAV JUDGMENT the plaintiff gave Power of Attorney to deceased - Mr.Champakbhai for the suit land and it is specifically so, in the face of voluminous the other evidence quite assertively points out to the factum of Power of Attorney being fabricated. Lastly, learned advocate Mr.Kapadia submitted that considering the scope of provisions contained in Order 43 Rule 1(r) of the Code, this Court may not interfere with the findings recorded by the learned trial Judge while accepting the injunction application as no perversity or illegality is committed by the learned trial Judge. In view of scope of appeal, learned advocate Mr.Kapadia further submitted that since the order of status quo qua the suit land is operating since four years, let the learned trial Judge be directed to expedite hearing of the suit. For that, the plaintiff would see that the trial is concluded as expeditiously as possible and the plaintiff would extend full co-operation to the learned trial Judge in disposing the suit at the earliest. In support of his submissions, learned advocate Mr.Kapadia has relied upon the following decisions:-
(i) Maharwal Khewaji Trust (Regd.) Faridkot V/s. Baldev Dass reported in AIR 2005 SC 104;
The Hon'ble Supreme Court has held that the Court should not allow the nature of property to be changed during the pendency of the suit which also includes alienation or transfer of property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead multiplicity of proceedings.
(ii) Ibrahim Shah Mohamad and others V/s. Noor Ahmed Noor Mohamed and others reported in 1983(2) GLR 961;
In the facts of the said case, the property was transferred pending the litigation. The Hon'ble Division Bench of the High Court of Gujarat has held that if injunction is not granted and property is allowed to Page 16 of 30 C/AO/315/2010 CAV JUDGMENT change hands with other persons, it would be necessary for the plaintiff to bring all parties on record, meaning thereby, delaying further proceedings' for bringing them on record and thus delaying the passing of the final decree. It is further observed that the Court should always lean towards seeing that there is no multiplicity of proceedings and also that proceedings should go on as far a possible so smooth that the decision can be arrived at between the parties who are on record as early as possible.
(iii) Adani Exports Ltd. V/s. Hindustan Organic Chemicals Ltd. reported in 2000(3) GLR 2759;
The Hon'ble High Court of Gujarat has laid down the proposition that the requirement of establishing a prima facie by the plaintiff does not mean that the court should examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. This would amount to prejudging the case on its merits. It is held that what a court has to determine in granting injunction is whether there is a bona fide contest between the parties and when there is a fair and substantial question to be decided as to the rights of the parties in the suit, it is not necessary for the purpose nor is it right that the court should further examine the question in dispute or anticipate the decision of the question in the suit itself.
(iv) Wander Ltd. and another V/s. Antox India P. Ltd. reported in 1990(supp) SC 727;
The Hon'ble Supreme Court has held that an appeal from order against an injunction under Order 39 Rule 1 is an appeal against the discretion of the lower court and that in such appeal the appellate court would not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. Appellate court will not reassess the material and seek to reach a conclusion different from one reached by the court below if the one reached by that court was reasonably possible on that material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial Page 17 of 30 C/AO/315/2010 CAV JUDGMENT stage it would have come to a contrary conclusion.
(v) M/s Julien Educational Trust vs Sourendra Kumar Roy reported in 2010 (1) SCC 379.
The Hon'ble Supreme Court in the said case has ordered injunction in favour of the Trust. Considering the principles of balance of convenience it has been held that if a suit property is allowed to be commercially exploited by raising multi-storeyed structures thereupon, the entire object of the suit filed by the appellant Trust will be rendered meaningless and the purpose for which the suit had been filed would be completely defeated. The Hon'ble Supreme Court was pleased to order that the suit be disposed of as early as possible but positively within one year.
(vi) A.V.Papayaa Sastry vs Government of Andhra Pradesh reported in AIR 2007 SC 1546
(vii) Santosh vs Jagat Ram reported in AIR 2010 SC (Supp) 65 The Hon'ble Supreme Court has held that there is a settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal and authority is a nullity and non est in the eye of law. It has to be treated as nullity by every court superior or inferior - it is vitiated.
In the second case, the Hon'ble Court has held that a fraud puts an end to everything. It has said that decree obtained by fraud is nothing but a nullity
(viii) Popat and Kotecha Property V/s. State Bank of India Staff Asso. reported in 2005(7) SCC 510;
Balasaria Construction (P). Ltd. V/s. Hanuman Seva Trust reported in 2006(5) SCC 658;
C. Natarajan V/s. Ashim Bai reported in AIR 2008 SC 363 In the above cases, in respect of applications for rejection of plaint under Order 7 Rule 11 of CPC on the ground of the suit being time-barred, the Hon'ble Supreme Court has stated that question of limitation is a mixed question of fact and law and that the plaint could not be rejected without necessary evidence and the Page 18 of 30 C/AO/315/2010 CAV JUDGMENT decision on the issue of limitation.
(ix) Ravi Prakash Agarwal V/s. Rajesh Prasad Agarwal reported in 2009(1) GLH 655;
In this case, where injunction had operated for 9 years and was subsequently recalled by the High Court, the Supreme Court observed that it would be appropriate to direct maintenance of status quo as originally granted and directed the trial court to dispose of the suit as early as possible.
(x) The Municipal Corp. of the City of Ahmedabad V/s. Haji Abdul Gafur reported in AIR 1971 SC 1201;
Haji Abdul Gafur V/s. The Municipal Corp. of the City of Ahmedabad reported in 1967 GLR 65 Dinkar S. Vaidya V/s. Ganpat S. Gore reported in AIR 1981 Bombay 190 Shakur V/s. Husaini Bibi reported in AIR 1923 Allahabad
447. In the above four cases, the Hon'ble Apex Court and the other High Courts, by and large, held that there is no principle or firm Rule of law imputing to all intending purchasers of the property in the municipal area where the municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. It is also ruled that the registration of document has the effect of notice to the world at large in respect of transaction relating to the property, but this doctrine of notice can have effect in a limited ambit, only the ambit being the one provided by the Transfer of Property Act.
11. Before the submissions made at bar are considered on facts, it is true that under the normal circumstances, the Court Page 19 of 30 C/AO/315/2010 CAV JUDGMENT should not allow the nature of property to be changed during the pendency of the suit which also includes alienation of the transfer of property so as to avoid multiplicity of proceedings. Similarly, the Court, while dealing with an injunction application filed under Order 39 Rule 1 and 2 of the Code, requires to determine whether there is a bona fide contest between the parties and when there is a fair and substantial question to be decided as to the rights of the parties to the suit, the Court should not examine the merits of the case closely and come to the conclusion that the plaintiff has a case in which he is likely to succeed. Similarly, it is settled proposition of law that the Appellate Court will not reassess the material and seek to reach a conclusion different from one reached by the court below if the one reached by that court was reasonably possible on that material. The Hon'ble Apex Court in case of Wander Ltd. (supra), cited at bar by learned advocate Mr.Kapadia for the plaintiff, held that; "an Appeal from Order against an injunction under Order 39 Rule 1 is an appeal against the discretion of the lower court and that in such appeal the appellate court would not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions."
12. Keeping in mind these broad principles surfacing in the decisions cited at bar by learned advocate Mr.Kapadia and further considering the fact that the defendant Nos.14 to 18 fairly conceded that they do not rely upon the decree granted Page 20 of 30 C/AO/315/2010 CAV JUDGMENT in Regular Civil Suit No.439 of 2003, now, it is right time to consider the submissions made at bar so as to consider whether the findings recorded by the learned trial Judge in the impugned order are perverse or discretion has been exercised arbitrarily or capriciously or not?
13. Upon perusal of the impugned order, it is quite evident that the learned trial court, after visual comparison in great details, found that the Power of Attorney was manipulated by deceased - Mr.Champakbhai in respect of the suit land and, therefore, this question goes to the root of the case and as the said issue is the base of present suit, it raises fair question to be decided by this Court. In Court's considered opinion, whatever differences found between two Power of Attorneys produced at Mark 3/10 and 3/11 by the learned trial Judge, upon visual comparison, are not sufficient to be considered as fair questions to be tried in the suit. While considering the differences between two Power of Attorneys as stated hereinabove, more particularly, in para 4.1 and as also observed by the learned trial Judge in para 10 of the impugned order, it appears that the learned trial Judge has overlooked following important aspects of the disputes vis-a-vis aspect of manipulation of two Power of Attorneys as per plaintiff's case.
13.1. There is no dispute that the plaintiff has executed Agreement to Sale on 01.03.1989 in respect of the suit land in total consideration of Rs.11 lacs. On the back side of the said sale agreement, the plaintiff has acknowledged the receipt of payment made from time to time and thus, in all, the plaintiff has acknowledged that he has received the entire consideration of Rs.11 lacs. Even in plaint para 4, more Page 21 of 30 C/AO/315/2010 CAV JUDGMENT particularly, in the bottom lines thereof, the plaintiff, in terms, states that the defendant Nos.1 to 4 executed the sale agreement and though the plaintiff approached them to perform sale agreement, the defendant Nos.1 to 10 did not give any heed. Yet, the plaintiff is not filing the suit for specific performance of the said sale agreement though he expressly stated that he intended to perform the sale agreement. Now, if the plaintiff intended to perform sale agreement and if he has received entire sale price of the suit land, then, the Court failed to understand as to what irreparable loss or injury would cause to the plaintiff if injunction is refused. On the contrary, if the injunction remains in force any further, then, it would cause more injury or loss to the defendants, who have paid the entire sale price of the suit land to the plaintiff way back in the year 1989. Unfortunately, the learned trial Judge failed to consider this part of matter in its true and correct perspective.
13.2. It is one of the contentions of learned advocate Mr.Kapadia that as deceased - Mr.Champakbhai failed to fulfill his obligations in accordance with the terms of Agreement to Sale dated 01.03.1989 in respect of the suit land, deceased - Mr.Champakbhai and plaintiff entered into one agreement dated 03.11.1999 whereby, deceased - Mr.Champakbhai agreed to pay Rs.15 lacs as well as agreed to transfer the land admeasuring 10 vighas. In his submissions, it is stated that deceased - Mr.Champakbhai did not even adhere to the said agreement dated 03.11.1999 and he neither gave money nor land to the plaintiff. This submission is devoid of merits and not required to be taken any further for the simple reason that no prayer, either in the present suit or in Regular Civil Suit No.439 of 2003 or by any separate proceedings, appears to have been Page 22 of 30 C/AO/315/2010 CAV JUDGMENT made. Strangely, the plaintiff has neither referred to nor produced the said agreement dated 03.11.1999 in the proceedings of Regular Civil Suit No.439 of 2003. 13.3. The learned trial Judge has committed grave error in observing that the plaintiff is in possession of the suit land on the premises that as deceased - Mr.Champakbhai was never put into possession and, therefore, he could not pass possession to the defendants. While holding so, the learned trial Judge observed that since the plaintiff is in possession of the suit land, he is not required to seek any relief for recovery of possession of the suit land and the plaintiff being true owner, possession follows the title. This finding though cannot be said to be perverse but, the plaintiff while invoking discretionary powers of the Court, successfully misled the Court to believe that the plaintiff is in possession of the suit land. Upon bare perusal of the amendment application dated 21.06.2013 preferred by the plaintiff at Exh.104, it becomes evident that the plaintiff, in terms, admitted that he was dispossessed in the year 2008 and, therefore, prayed for the relief that he be put back in possession of the suit land from which, he was dispossessed in the months of January and February, 2008. This conduct of the plaintiff goes to indicate that when injunction applications below Exhs.5 and 116 were heard by the learned trial Judge in the year 2010, though the plaintiff was not in possession of the suit land, he continued to assert before the learned trial Judge that he is in possession of the suit land and thus, he misled the learned trial Judge in believing the case as if the plaintiff is in possession of the suit land.
13.4. It is an admitted fact that the suit land and also the land Page 23 of 30 C/AO/315/2010 CAV JUDGMENT bearing Revenue Survey No.485 were under the clutches of the ULC proceedings. It is an admitted fact or rather it is not a case of the plaintiff that he entered into any correspondence with the ULC authority either with respect to the suit land or land bearing Revenue Survey No.485 at any point of time till the month of August 1999. In other words, the entire correspondence/proceedings for both the lands were conducted before the ULC authority by deceased - Mr.Champakbhai as Power of Attorney of the plaintiff from March 1989 onwards till August 1999. Strangely and surprisingly, it is also relevant to note here that one communication dated 07.08.1991 addressed by the ULC authority to deceased - Mr.Champakbhai was also served to the plaintiff. The said communication, if freely translated in English, reads as under:-
Urban Land Ceiling Act - 1976.
Order u/s 6 (1) -Surat City Complex -Vesu- review u/s 34 Shri Gokulbhai Samubhai Lalabhai c/o Champakbhai Thakorbhai Patel.
Gujarat State Revenue Department, Order No. ULC-349-1/960/3383/v-3, Secretariat, Gandhinagar, Date. 7-8-91.
Order The Competent Officer & Additional Collector (Urba13358n Land) Surat, by his order No.ULC-6(1)- 146-82-Ve.Su.U.5 dated. 11/10/87, having held for taking under revision under the officer for revision under Section-34 of the Government the orders passed in the case of Form -1 under Section-6 of the Urban Land Ceiling Act -1976 in respect of the land admeasuring 99447 Sq.Mtr constructed the edge of Surat City Complex by Shri Gokulbhai Lakhabhai Lalabhai,issued Show Cause Notice dated. 21/03/91 to the parties and an opportunity was given to make submission as to why the order of the Competent Page 24 of 30 C/AO/315/2010 CAV JUDGMENT Authority should not be rejected. In this connection, submission has been completed from the side of the party on 31-7-91. Considering the submission made by the party, it does not appear necessary to interfere by the government in the orders dated 11-10-87 made by the competent authority. Hence, the procedure of review on Section 34 is hereby closed and the stay- order no. ULC-3491-960-3383-v-3 given on 22-3-91 is hereby vacated.
By the order and in the name of the Governor of Gujarat.
Sd/- Illegible (Gangasinh Parmar ) Deputy Secretary Revenue Department, Government of Gujarat Only to use as information under Right To Information Act.
To, Shri Gokulbhai Samubhai Lalbhai At - Magdalla Tal. Chiriyasi Dist. Surat.
By. Reg. Post AD.
Copy forwarded To :
1 The Competent Authority and Addl. Collector -
Surat with the case papers for the needful procedure.
2. The District Development Officer, Surat.
3. The Collector, Surat.
4. The Municipal Commissioner, Surat.
5. Urban Development Authority, Surat.
6. Review Unit, The Commissioner J. N. Office, Revenue Dept. Block no. 11,
7. Select File To use only for the information under Right To Information Act.
Sd/- illegible Section Officer Revenue Dept. Govt. of Gujarat.
Enclosure : Case Papers.
Page 25 of 30 C/AO/315/2010 CAV JUDGMENTIt is an admitted fact that the plaintiff has never denied that he has not received the above communication dated 07.08.1991. The said communication, in terms, indicates that deceased - Mr.Champakbhai was involved in pursuing the competent authority under ULC Act in respect of both the lands as a Power of Attorney of the plaintiff. The above communication, though received by the plaintiff, which is never disputed, would go to indicate that the plaintiff has direct notice or knowledge about factum of deceased - Mr.Champakbhai holding and acting as plaintiff's Power of Attorney and as a Power of Attorney holder of the plaintiff, deceased - Mr.Champakbhai conducted the proceedings before the ULC authority. This conduct goes to indicate that the plaintiff has never entered into any correspondence or proceedings with the ULC authority in person or in his individual capacity in respect of both the lands but it is deceased - Mr.Champakbhai, who approached the ULC authority as Power of Attorney holder of the plaintiff during the said period from March, 1989 to August, 1999. Therefore, it, prima facie, proves that deceased - Mr.Champakbhai was Power of Attorney of the plaintiff and he acted accordingly.
13.5. It is an admitted fact that three Registered Sale Deeds came to be executed by the defendant Nos.1 to 10 in the month of April, 2001 and necessary entry in the revenue records also entered in the year 2001 itself but still however, the plaintiff filed the suit on 26.09.2006. It is an admitted fact that the registration is a deemed notice and the limitation will commence from such deemed notice i.e. date of registration of the document. Under these circumstances, though the plaintiff approached the Court at belated stage, therefore, the learned Page 26 of 30 C/AO/315/2010 CAV JUDGMENT trial Judge ought not to have granted equitable relief of injunction in favour of the plaintiff, who has approached the Court after great delay. No need to say that though the plaintiff was aware about such fraudulent transaction as per his own case in the month of December, 2003, yet he did not take suitable measures to challenge the same before the competent Court and he continued to pursue the remedy to join him as party in Regular Civil Suit No.439 of 2003. This vital part is not considered by the learned trial Judge whether the plaintiff is entitled for the equitable relief of injunction at belated stage or not?
13.6. The contention of the plaintiff that signatures of his son, namely, Poonam, aged 8 years, and also of his sisters have been forged, is baseless and made with a view to mislead the Court. The obvious reason is such that the said birth certificate was produced by the plaintiff himself before the Deputy Collector on 12.05.1987 which is produced at page No.790 of the paper-book. It requires to be noted that if the certificate being forged, then, the plaintiff would not have used it before any authority. However, on one hand, the plaintiff relies upon such certificate before the Deputy Collector and on the other hand, he challenges the same as being fraudulently created by deceased - Mr.Champakbhai. Such submission of the plaintiff appears to have been made with a view to mislead the Court and, therefore, there is no substance to believe such submission that the said birth certificate of minor - Poonam is fraudulently created by deceased - Mr.Champakbhai.
13.7. The findings of the learned trial Judge on page 22 of the impugned order to the effect that it should not be believed that Page 27 of 30 C/AO/315/2010 CAV JUDGMENT the plaintiff executed Agreement to Sale dated 01.03.1989 are absolutely unwarranted and unjustified because it is not a case of the plaintiff that he has never executed the said sale agreement dated 01.03.1989 but on the contrary, he ventilates the grievance in the plaint that though he approached deceased - Mr.Champakbhai to perform the sale agreement, he was given evasive reply.
14. In view of the above facts emerging on record, the learned trial Judge ought not to have granted any relief in favour of the plaintiff as he miserably failed to prove all the required ingredients of Order 39 Rule 1 and 2 of the Code. Prima facie, it emerges on record that deceased - Mr.Champakbhai has acted as Power of Attorney of the plaintiff for conducting the proceedings before the ULC authority; vide communication dated 07.08.1991, it seems that the plaintiff is served with it wherein, deceased - Mr.Champakbhai has been addressed a letter in the capacity of plaintiff's Power of Attorney; the plaintiff received entire sale price of the suit land from the deceased - Mr.Champakbhai as per sale agreement dated 01.03.1989 and, therefore, there cannot be any reason on the part of the deceased - Mr.Champakbhai to manipulate Power of Attorney in question as alleged. So, the entire story of Power of Attorney being manipulated does not appear to be genuine or believable on the face of it. Thus, looking to the plaintiff's conduct as noted hereinabove, no case is made out to grant the relief as prayed for below injunction application Exh.5. In Court's considered opinion, there is no bona fide contest between the parties or at least the plaintiff has not raised any fair and substantial question to be decided so as to protect the plaintiff.
Page 28 of 30 C/AO/315/2010 CAV JUDGMENT15. The Court restrained itself to consider the other aspect, namely, whether the suit is barred by law of Limitation or not because the said question is a mixed question of fact and law and furthermore, defendant's application under Order 7 Rule 11 of the Code is pending for decision. So, on this count, it is not desirable to refuse the injunction as submitted by learned Senior Counsel Mr.Kavina.
16. In view of the above discussion at length, findings recorded by the learned trial Judge are absolutely perverse and to a great extent, run counter to the admitted facts of the case on hand and, therefore, the Court requires to interfere with such findings recorded by the learned trial Judge under Order 39 Rule 1 of the Code, in exercise of limited powers of this Court under Order 43 Rule 1(r) of the Code. Accordingly, the impugned order dated 31.08.2010 passed by the learned Principal Senior Civil Judge, Surat below Exh.5 in Special Civil Suit No.301 of 2006 is hereby quashed and set aside.
17. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Article 227 of the Constitution of India, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court hereinabove while deciding the suit at the end of trial. The learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and in Page 29 of 30 C/AO/315/2010 CAV JUDGMENT accordance with law. Since the dispute between the parties pertains to transaction which took place in the year 1989 and the suit is filed in the year 2006, the learned trial Judge is directed to decide the suit on merits within one year from the date of receipt of copy of this order.
18. In view of the above, present Appeal from Order stands allowed. Relief granted by this Court vide order dated 01.05.2013, pending hearing of the present Appeal from Order, is hereby vacated forthwith.
Order in Civil Application In view of the order passed in the Appeal from Order, this application does not survive and the same is also disposed of.
(S.H.VORA, J.) Hitesh Further Order After pronouncement of judgment today, learned advocate Mr.Aspi Kapadia for respondent No.1 - original plaintiff requests to stay the judgment with a view to approach the Hon'ble Supreme Court.
Accordingly, the judgment pronounced today is stayed upto four weeks from today so as to enable the respondent to approach the Hon'ble Supreme Court.
(S.H.VORA, J.) Hitesh Page 30 of 30