Gujarat High Court
Lakshmiben D/O Prahladbhai And W/O ... vs Sambhubhai Prahaladbhai Thakor on 11 February, 2021
Author: A. C. Rao
Bench: A.C. Rao
C/AO/94/2020 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/APPEALFROMORDERNO. 94 of 2020
With
CIVILAPPLICATION(FORSTAY) NO. 1 of 2020
In R/APPEALFROMORDERNO. 94 of 2020
With
R/APPEALFROMORDERNO. 77 of 2020
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEA.C. RAO Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?
============================================================================== SHAMBHUBHAIPRAHLADBHAITHAKOR Versus LAXMIBEND/O DAHYABHAIPRAHLADBHAITHAKORW/OLAXMANJIMANGAJITHAKOR ============================================================================== Appearance:
(Appeal fromOrderNo.94of 2020) HARSHV GAJJAR(7828)for the Appellant(s)No. 1,2,3 for the Respondent(s)No. 1,2,2.1 (Appeal fromOrderNo.77of 2020) ARPITPATELfor the Appellant(s)No.1 HARSHV GAJJARfor the RespondentNos.1-3 PRANAVA MEHTAfor the RespondentNos.4-4.1 ============================================================================== CORAM: HONOURABLE MR. JUSTICE A.C. RAO Date: 11/02/2021 COMMONCAVJUDGMENT Page 1 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT Both the above-numbered Appeal from Orders arise from the common order dated 28.2.2020 passed below Exh.5 and 41 in Special Civil Suit No.564 of 2017 by the Court of learned Principal Senior Civil Judge, Sanand. Since both the Appeal from Orders are arising out of the common order dated 28.2.2020, they are being heard together and are being decided by this common CAV Judgment.
2. So far as Appeal from Order No.94 of 2020 is concerned, the appellant Nos.1 to 3 therein are the original defendant Nos.1 to 3 whereas the respondent Nos.1 and 2 are the original plaintiffs and defendant Nos.4 and 4.1 of the Special Civil Suit No.163 of 2015 pending in the Court of Principal Civil Judge, Sanand and so far as Appeal from Order No.77 of 2020 is concerned, the appellant No.1 therein is the original plaintiff, whereas the respondent Nos.1 to 4.2 are the original defendants.
The said Special Civil Suit No.163 of 2015 was filed by the plaintiff before the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, which upon formation of the Court of Senior Civil Judge at Sanand, transferred and re- numbered as Special Civil Suit No.546 of 2017 and is at present pending in the Court of learned Principal Senior Civil Judge, Sanand.
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C/AO/94/2020 CAVJUDGMENT 2.1 In present order, the plaintiff and defendants are
being referred to as per their original status before the learned trial Court in the pending suit proceedings.
3. So far as facts, leading to filing of Appeal from Order No.94 of 2020 is concerned, the appellants of the said appeal have stated in their own words that the original plaintiff - respondent No.1 herein has preferred Special Civil Suit No.163 of 2015 (new number being Special Civil Suit No.546 of 2017) seeking relief of partition, declaration and perpetual injunction before the Court of learned Principal Senior Civil Judge, Sanand against the appellant herein - original respondent No.2. 3.1 It is the case of the plaintiff that suit land situated at Block No.18 paiki admeasuring total H.R.A. 06-02-98 sq. mts. of Changodar, taluka Sanand, district Ahmedabad is an ancestral property which was originally owned by Prahladbhai Chakubhai. Prahladbhai Chakubhai expired on 16.12.1978. The suit land was ancestral and undivided property. It is further case of the plaintiff that her name was never mutated in the revenue record and the name of present appellant No.1 was mutated in the revenue record vide revenue entry No.1729 on 23.5.1989, Page 3 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT without mutating the name of the mother of the plaintiff. The plaintiff claims to be daughter of Dahyabhai Thakor who pre- deceased his father Prahladbhai Chakubhai. Accrdingly, the plaintiff has prayed for grant of 1/5th share in the suit land viz. 12060 sq. mts. out of the total land admeasuirng 60,298 sq. mts.
3.2 That the original plaintiff - respondent No.1 had preferred application seeking interim injunction vide Exh.5 against the appellants herein to restrain the appellant from dealing or alienating the suit land in any manner till the final disposal of the suit. The original defendant Nos.4 to 4.1 had also preferred application at Exh.41 seeking interim injunction against the original plaintiff. It is also submitted that the learned trial Court had allowed application at Exh.5 and 41 vide order dated 15.6.2017. Being aggrieved, the present appellant and the respondent No.2 had preferred Appeal from Order No.316 of 2017 and Appeal from Order No.264 of 2017 respectively before this court and both the matters were heard together and vide judgment and order dated 21.1.2020, the appeals came to be allowed and the impugned order dated 15.6.2017 was quashed and set aside and the matter was remanded back for fresh consideration.
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C/AO/94/2020 CAVJUDGMENT 3.3 It is also stated that the learned trial Court after fresh
consideration of the applications at Exh.5 and 41 has been pleased to allow relief prayed in Exh.5 and Exh.41 came to be rejected vide common order dated 28.2.2020. Accordingly, the interim injunction came to be granted qua the present appellant whereas the interim injunction qua the respondent No.2 herein was vacated by the learned trial Court. The appellants being aggrieved by the same, preferred present appeal.
4. So far as facts, leading to filing of Appeal from Order No.77 of 2020 is concerned, the appellants of the said appeal have stated in their own words that the suit land being survey/ block No.18 paiki total admeasuring H 6/2/98 sq. mt. of village Changodar, taluka Sanand, district Ahmedabad was original owned by Prahaladbhai Chakubhai who has expired on dated 16/12/1978. The said Prahladbhai Chakubhai had legal heirs namely, (1) Shambhubhai; (2) Shakriben (deceased); (3) Gangaben (Deceased); (4) Dahyabhai (pre-deceased); and (5) Manguben. Since the Dahyabhai was pre-deceased, his legal heirs are, (1) Maniben (deceased's wife); (2) Laxmiben (deceased's daughter); (3) Ashaben (deceased's daughter); (4) Maghiben (deceased's daughter).
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C/AO/94/2020 CAVJUDGMENT 4.1 It is also submitted that the suit land is undivided
and therefore the appellants - original plaintiffs have divided 1/5 share in the suit property. It is also submitted that the plaintiff has filed the Special Civil Suit No.163 of 2015 against the present respondent Nos.1 to 3 for declaration, partition and permanent injunction before the learned trial Court. It is submitted that the plaintiffs have also preferred the interim injunction application vide Exh.5. In the said interim injunction application, the learned trial Court passed an order dated 18.7.2016 whereby the ad-interim injunction in terms of status quo of the suit property was granted. It is also submitted that during the pendency of the suit, the respondent Nos.1 to 3 has sold out the land admeasuring 7607 sq. mts. to respondent No.4 by register sale deed dated 21.12.2015 and therefore, the applicant has also joined the respondent No.4 as defendant in the original suit and filed an application vide Exh.41 praying interim injunction against the respondent No.4. 4.2 It is also stated that thereafter, the learned trial Court has passed an order dated 15.6.2017 whereby the applicant vide Exh.5 and 41 are allowed. That against the said order, the respondent Nos.1 to 3 have filed Appeal from Order Page 6 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT No.316 of 2017 and the respondent No.4 has filed an Appeal from order No.264 of 2017 before this Court. It is pertinent to point out here that no interim injunction was granted by this Court. It is submitted that both the appeals have been decided by this Court and this Court has passed an order dated 21.1.2020 whereby both the appeals were partly allowed and remanded the matter for fresh consideration of Exh.5 and 41 with certain direction. It is necessary to mention here that the stay granted by the learned trial Court was continued for further 6 weeks by this Court.
4.3 It is also submitted that thereafter, the learned trial Court has once again hear the applications Exh.5 and Exh.41 and passed impugned order dated 28.2.2020 whereby the learned trial Court has partly allowed the Exh.5 application and rejected the Exh.41 application and thereby the stay against the suit property was granted except the lands admeasuring 7607 sq. mt. which was purchased by the respondent No.4 during the pendency of the appeal. Being aggrieved by the said order, present appeal is filed and it is contended that the learned trial Court has wrongly rejected the injunction for the land admeasuring 7607 sq. mts. which is purchased by the respondent No.4. It is vehemently contended that the respondent Page 7 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT No.4 is required to be restrained from making any further construction over the suit premises otherwise, the right of the appellant who is the co-owner of the property would seriously prejudice. It is also submitted that while passing the impugned order, the learned trial Court has not considered the facts and has seriously erred in giving the findings on the point of prima facie case, balance of convenience and irreparable loss.
5. Mr. Gajjar, learned advocate for the appellants in Appeal from Order No.94 of 2020 has contended that the learned trial Court has failed to consider the judgment passed by this Court in Appeal from order No.316 of 2017 whereby it was observed by this Court that the order granting interim injunction was wrongly passed without considering the parameters enshrined under Order XXXIX for grant of interim injunction as the aspects of prima facie case, balance of convenience and irreparable loss has to be satisfied before grant of injunction and therefore, when the earlier order below Exh.5 dated 15.6.2017 was quashed, the same reasoning assigned in such order could not have been reiterated and adopted by the learned trial Court while allowing the Exh.5 application in second round of litigation and that therefore, the impugned order deserves to be quashed and set aside. It is contended that the learned trial Court has Page 8 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT failed to consider that there was family arrangement at the relevant time way back in 1979 whereby the mother of the plaintiff viz. late Maniben Dahyabhai Thakor had relinquished her share by free will and volition in favour of the appellant No.
1. Therefore, the name of appellant No. 1 was mutated vide Revenue Entry No. 1729 on 23.05.1979 and qua relinquishment of rights by late Maniben, Revenue Entry No. 1731 was posted on 23.05.1979. In view of the same, all the rights which could have been inherited by late Dahyabhai who is pre-deceased son of propositus Prahladbhai Chakubhai, had been duly relinquished in accordance with law in favour of the appellant No. 1 and therefore, no rights could be inferred in favour of the respondent No. 1 herein who is the daughter of late Maniben Dahyabhai Thakor. It is contended that the learned trial Court has failed to appreciate that since 23.05.1979, neither the plaintiff nor her mother Maniben, who had relinquished her right agitated about any foul play or claim to the suit land in question. It is notable that late Maniben expired on 27.11.2010 and till her death, she was residing with the appellants. However, at no point of time, any rights had been claimed by late Maniben in view of the relinquishment which occurred due to family arrangement. Therefore the claim of the respondent No. 1 is grossly barred by limitation and malicious in nature and not Page 9 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT maintainable in eyes of law. It is contended that the learned trial Court has failed to appreciate that the revenue entries mutated in favour of the appellants have never been questioned or challenged before the competent forum in view of the fact that the same have been mutated at the relevant time after following the procedure prescribed in Gujarat Land Revenue Code. Therefore, such aspect ought to had been considered by the learned trial Court. It is contended that the learned trial Court has grossly erred to consider that as per the case of plaintiff as narrated in the Exhibit-5 application itself, whereby various parcels of land of Block No. 18 have been sold to different persons from 1995 to 2007. Apart from the sale of land to Cadila Health Care Limited in 2007, another parcels of land admeasuring 6084 sq.mts. had been sold by the appellants way back in the year 1995 vide registered sale deed dated 06.05.1995 at serial No. 1748, sale deed dated 17.02.1995 vide serial No. 748, sale deed dated 20.04.1995 vide serial No. 748, 749, 750, 751, 752; sale deed dated 11.08.1995 vide serial No. 3543, sale deed dated 18.09.1996 vide serial No. 2022, sale deed dated 30.11.1998 vide serial No. 1380, sale deed dated 16.03.2004 vide serial No. 360, sale deed dated 14.12.2007 vide serial No. 6088, etc. Therefore, several parcels of land have been sold by the appellants in the intervening period and the same has been Page 10 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT occupied and possessed by third party. Therefore, the plaintiff cannot plead ignorance to such fact and file a suit belatedly in 2015 after a delay of 35 years as if the plaintiff is not aware about the transactions. It is further contended that the sale deeds have been executed and registered after issuing public notice and taking title clearance certificate and therefore it is crystal clear that the suit has been preferred in malafide manner to harass the appellants after having once accepted the share in the family properties which had taken place way back in the year 1979.
5.1 Mr. Gajjar learned advocate for the appellants has also contended that the learned trial Court failed to appreciate that respondent No. 1 was major when propositus died in 1979. It is further wrongly observed that plaintiff never relinquished her right. On the contrary, once there is relinquishment of share of Dahyabhai Prahladbhai by Maniben, the respondent No.1 cannot claim any right independently otherwise, the relinquishment would be rendered otiose. Therefore, the respondent No. 1 in absence of any right could not establish any prima facie case for grant of injunction. It is contended that the learned trial Court has failed to appreciate that the respondent No. 1 did not approach the Court with clean hands. The plaintiff Page 11 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT had claimed that she is the only heir of late Dahyabhai, however, it is suppressed from the Court that heirs of Ashaben and Maghiben are also in existence and therefore they ought to had been joined as a party in a suit for partition. However, they have not been joined in clandestine manner and therefore the respondent No. 1 was not entitled for grant of any equitable relief. It is also contended that the learned trial Court has failed to consider the pleadings of the plaintiff whereby the claim of the plaintiff as per the application at Exhibit 5 and the plaint is limited to 12060 sq.mts (1/5 share) whereas the entire remaining parcel of land has been made subject matter of injunction order and therefore blanket injunction order on entire parcel of remaining land cannot be sustained in eyes of law, therefore also the impugned order deserves to be quashed and set aside as the same is blanket order without application of judicial mind. It is contended that the learned trial Court failed to appreciate that when claims made in the plaint are grossly barred by delay and latches and the plaintiff has launched the litigation after serious lapse of time, then equitable remedy in form of temporary injunction cannot be granted in eyes of law. It is contended that the learned trial Court has not assigned any reasons and findings qua the aspect of balance of convenience and irreparable loss to the respondent No. 1. It is contended that Page 12 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT the learned trial Court has granted Exhibit 5 application by only considering the aspect of prima facie case however two other vital pillars to decide grant of injunction have been brushed aside and no reason worth name has been assigned in the impugned order to show that how the respondent No. 1 would suffer irreparable loss by non grant of injunction which could not be compensated in terms of money and whether the balance of convenience is in favour of the respondent No 1. It is contended that the impugned order is against the settled principles enshrined under Order XXXIX of the Code of Civil Procedure, 1908 and even against the judgment dated 21.01.2020 passed by this Court in Appeal from Order No 316/2017.
6. Mr. Arpit Patel, learned advocate for the appellants in Appeal from Order No.77 of 2020 has contended that undisputedly the appellants are the legal hairs and are entitled to have their undivided share in the suit property. Admittedly the respondent No. 1 to 3 has sold out the 7607 sq. mts. during the pendency of the civil suit. Thus the learned trial Court has failed to considered the fact that if the respondent No. 4 is not restrained by granting injunction, he may deal with the suit property in question which amounts to multiplicity of Page 13 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT proceedings. It is contended that the purchaser will not get right more than the seller. In the present case, the appellants have undivided right title and interest in the suit property being the legal heirs. It is contended that that out of the said suit property the respondent No. 1 to 3 have sold out the land admeasuring 7607 sq. mt. to the respondent No. 4 during the pendency of the suit proceedings though the 1/5 of the share of the appellants are maintained in the said parcel of land. Thus the respondent No. 1 to 3 have no right to sold the property wherein the 1/5 share of the appellants are maintained without consent of the appellants. And therefore the respondent No. 4 has no prima facie case in their favour. It is contended that the learned trial Court has grossly erred in observing that the respondent No. 4 has put up major construction prior to the filing of the suit. It is contended that the learned trial Court has erred in not considering the fact that the Respondent No. 4 is not bonafide purchaser as he has purchased the land during the pendency of the civil suit. It is submitted that the plaintiffs have also registered the lease pendency and issued public notice. It is further contended that the respondent no. 1 to 3 have already appeared in the suit and therefore it cannot be believed that the respondent No. 4 did not have knowledge about the pendency of the suit proceedings. It is contended that the learned trial Court Page 14 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT has not even considered the conduct of the respondents. It is contended that as observed in order dated 18/07/2016 the defendants No. 1 to 3 were avoided the proceedings of injunction application vide Exh. 5 for a long time and during that time had executed the sale deed in favor of the respondent No. 4. Considering the said conduct the learned trial Court has earlier passed an order dated 18/07/2016 below Exh. 5 Application and order to maintain status qua. It is contended that the learned trial Court has erred in holding Prima facie case, balance of convince and irreparable loss in favor of the respondent No.4. It is contended that the learned trial Court has misinterpreted the order of this Court and passed the impugned order. It is contended that the learned trial Court ought to have held that the respondent No. 4 is not bonafide purchaser and therefore, he is not entitled for any equitable relief in his favor. It is contended that the learned trial Court ought to have considered that the balance of convenience is in favor of the appellants. It is contended that the learned trial Court has erred in not considering that the balance of convenience is in favor of the appellants and non grant of the interim relief will amount to the irreparable loss to the appellants. It light of above contentions, it is submitted that the impugned order may be quashed and set aside.
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C/AO/94/2020 CAVJUDGMENT 6.1 He has contended that the father of the plaintiff
Laxmiben namely Prahladbhai had died on 16.12.1978 and in this regard a revenue entry was also mutated. It is contended that Sakriben, Gangaben, Maniben and Maganbhai have relinquished their rights and therefore, revenue entry No.1731 was mutated to that effect. It is contended that in the revenue entry, nowhere it is stated that the plaintiff had relinquished her right. It is contended that in the pedigree also, the name of the plaintiff is required to be shown, but that was not shown. It is contended that the mother of the plaintiff was not entitled to relinquish the share of the plaintiff. It is contended that no where the defendants have submitted that the present plaintiff is not the co-sharer in the suit premises. It is contended that the suit property was never divided amongst co-sharer of the property. It is contended that after the Special Civil Suit No.163 of 2015 was filed and learned advocate for the defendants had remained present, the court has passed injunction order on 18.7.2016. It is contended that during the pendency of the suit, other co-sharer had sold the land by registered sale deed on 21.12.2015 in favour of the defendant. It is contended that though there was lis pendence, the land was sold by the registered sale deed and the sale deed is executed after filing of Page 16 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT the suit. It is contended that it was the duty of the seller to disclose this fact, however, whenever the appellant came to know about the sale deed, the purchaser was joined in the suit proceedings. It is contended that the suit was filed in March 2015 and the sale deed was executed in the month of December 2015. Thus, the suit was prior to sale deed and therefore, lis pendence is clearly applicable. It is contended that the learned trial Court has not considered this fact while passing the impugned order. It is vehemently submitted that the respondents have no right to sold the undivided share of the plaintiff. Otherwise, it would clearly prejudice the right of the plaintiff. It is contended that the learned trial Court has failed to consider that if the injunction is not granted, the respondent No.4 who is making the premises for commercial use would sold the land to the third party and they are also required to be joined in the proceedings and it would be resulted into multiplicity of the proceedings.
6.2 It is contended that in the appeal being Civil Appeal No.9092 of 2017 filed before the Apex Court, the Apex Court has held that... "if the appellant succeeds in the appeal pending in the High Court, the situation would become irretrievable. The photographs of the constructions have been shown and it is Page 17 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT admitted by learned counsel for the appellant that the constructions have been made. In our view, the constructions have been made and which will defeat the rights of the appellant in the High Court. Under the circumstances, we modify the interim order and while upholding that the doctrine of lis pendens will apply, we direct the parties to maintain status quo with regard to construction on the property in dispute." 6.3 In support of his submissions, he has relied on the decision of the Apex Court in the case between Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass [AIR 2005 SC 104] wherein it is held that:-
"10. Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."
Relying upon the same, it is contended that the Page 18 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT respondent No.4 has not made out any extraordinary ground so the construction may be permitted.
6.4 He has also relied on the decision of the Apex Court in the case between Vidya Devi alias Vidya Vati (Dead by L.R's) v. Prem Prakash & Ors. [AIR 1995 SC 1789] wherein it is held that, when there is no limitation fixed for filing the suit of partition by a co-owner (co-bhumidar) in respect of the joint holding, there cannot be adverse possession against the co-owner. Under the circumstances, the contention raised by the respondent that the suit is barred by limitation cannot be sustained.
7. Mr. Gajjar learned advocate for the respondent Nos.1 to 3 has, while opposing the submissions by learned advocate for the appellants in Appeal from Order No.77 of 2020, has reiterated the contentions raised in support of Appeal From Order No.94 of 2020.
8. Mr. Pranav Mehta, learned advocate for the respondent Nos.4 and 4.1 in Appeal from Order No.77 of 2020 has contended that the suit is barred because the other heirs of the Gangaben and Manguben are not joined. It is contended that the partition has already taken place. It is contended that in the Page 19 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT year 1995, 1996, 1998 and 2007, the sale deeds were executed and at that time, present plaintiff has not objected the same. It is contended that the respondent had issued public notice, however, the same was not opposed by the plaintiff. It is contended that the sale deed was executed in the year 2016. It is contended that the respondent No.4 and 4.1 have spent about Rs.42 Lakhs to convert the land in non-agricultural from agricultural. It is contended that the respondent Nos.4 and 4.1 have paid Rs.3 Crores towards sale consideration. It is contended that they have spent almost Rs.16 Crores towards the construction. It is contended that on 18.7.2016, the injunction was granted. It is contended that before that the construction was already started. It is contended that the suit is barred by delay and laches. It is contended that the suit is filed in collusion with other respondents so as to fetch more money. It is contended that in the sale deed itself, it is stated that the construction work is going on at the suit premises. 8.1 In support of his submissions, he has relied on the decision in the case between Wander Ltd. & Anr. v. Antox India P. Ltd. [1990 (Supp) SCC 727] wherein it is held that:-
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been Page 20 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the 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 stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :
... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this principle."
8.2 He has relied on the decision of this Court in the case between Veetrag Holding Co. Ltd. v. Gujarat State Textile Corporation Ltd. [1996 (3) GLR 536], wherein it is held that:-
"8. Even so, in any case, inasmuch as this contract was terminated on 6th December 1993, it was expected of the appellant to move for specific performance at the earliest, if they were serious about the same. The appellants certainly cannot be non-suited on the ground of limitation inasmuch as their suit is within time. However, when it comes to grant of equitable relief when the suit is filed after such a lapse of time, it cannot be said that the remedy of interim injunction was the necessary remedy and there was no other remedy available to the party concerned in this behalf. Shri Gupta relied upon the Apex Court judgment rendered in Dalpat Kumar and Anr. v. Prahlad Singh and Ors. thereof the Courts are cautioned and required to exercise sound judicial discretion. They are required to find out that no other remedy is available to the party concerned and then as stated by the Honourable Supreme Court (and again relied upon by Shri Gupta) in para 20 of the judgment of the Apex Court rendered in State of Maharashtra v. Digambar ; for approaching a Court of equity, the blameworthy conduct of a person approaching a Court of equity, for obtaining discretionary relief disentitles him for grant of such relief. Para 20 of the above judgment reads as under:
Laches or undue delay, the blameworthy conduct of a person in approaching a Court of equity in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Hurd, thus:
Now the doctrine of laches in Courts of Equity is not an arbitrary Page 21 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
8.3 He has relied on the decision of the Apex Court in the case between Kishorsinh Ratansinh Jadeja v. Maruti Corporation & Ors. [(2009) 11 SCC 229] wherein it is held that:-
"40. On the other hand, if the owners of the property remain restrained from developing the same, it is they, who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against grant of such injunction. The success of the suit for specific performance filed by the Respondent No.1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years, despite the finding of the Trial Court that the suit was not barred by limitation.
41. The question of conduct of the Respondent No.1 also becomes relevant, inasmuch as, having slept over its rights for more than 19 years, it will be inequitable on its prayer to restrain the owners of the property from dealing with the same, having particular regard to the fact that a large portion of the land has already been conveyed to as many as 280 purchasers who are in the process of erecting constructions thereupon.
42. We are, therefore, unable to sustain the interim orders passed by the Division Bench of the Gujarat High Court on 22nd April, 2008 and 7th May, 2008 in the appeals pending before it. We, accordingly, set aside the orders dated 22nd April, 2008 and 7th May, 2008, passed by the Division Bench of the Gujarat High Court in F.A.No.853 of 2008 and C.A. Nos.2405 and 5618 of 2008 and maintain the initial order dated 29th February, 2008. The appeals and the connected Interlocutory Applications are, accordingly, disposed of."
8.4 He has relied on the decision of the Apex Court in the case between Mandali Ranganna & Ors. v. T. Ramachandra & Page 22 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT Ors. [(2008) 11 SCC 1] wherein it is held that:-
"21. While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties.
22. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively.
23. This Court in M. Gurudas and Others v. Rasaranjan and Others [(2006) 8 SCC 367] noticed:
"19. A finding on "prima facie case" would be a finding of fact. However, while arriving at such a finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhavan that the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd. would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. but we are not persuaded to delve thereinto."
Therein, however, the question in regard to valid adoption of a daughter was in issue. This Court held that Nirmala was not a validly adopted daughter. This Court wondered:
"34. The properties may be valuable but would it be proper to issue an order of injunction restraining the appellants herein from dealing with the properties in any manner whatsoever is the core question. They have not been able to enjoy the fruits of the development agreements. The properties have not been sold for a long time. The commercial property has not been put to any use. The condition of the properties remaining wholly unused could deteriorate. These issues are relevant. The courts below did not pose these questions unto themselves and, thus, misdirected themselves in law."
8.5 He has also relied on the decision of Apex Court in the case between Best Sellers Retail (India) Private Ltd. v. Aditya Birla Nuvo Limited & Ors. [(2012) 6 SCC 792], wherein it is held that:-
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C/AO/94/2020 CAVJUDGMENT "12. Mr. Altaf Ahmed and Mr. A.K. Ganguly, learned senior counsel appearing for the two appellants, submitted relying on the decision of this Court in Kishoresinh Ratansinh Jadeja v. Maruti Corporation & Ors. [(2009) 11 SCC 229] that while passing an order of temporary injunction under Order 39 Rules 1 and 2 CPC, the Court is to consider (i) whether the plaintiff has a prima facie case; (ii) whether balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff will suffer irreparable loss and injury if an order of injunction was not passed.
13. They submitted that the respondent no.1 itself has claimed damages of Rs.20,12,44,398/- as alternative relief in the event the suit for specific performance of the contract is not decreed. They argued that as the plaintiff itself had made a claim for damages for the alleged breach of the agreement by the defendants, the Court should not have granted the temporary injunction in favour of the plaintiff.
14. Learned counsel for the appellants further submitted that Section 14(1) of the Specific Relief Act, 1963 provides in clause (b) that a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms, such a contract cannot be specifically enforced. They submitted that similarly Section 14(1) in clause (d) provides that a contract, the performance which involves the performance of a continuous duty which the court cannot supervise, is a contract which cannot be specifically enforced. They submitted that the agreement between Liberty Agencies and respondent no.1 is a contract of agency and is covered under clauses (b) and (d) of Section 14(1) of the Specific Relief Act, 1963 and is one which cannot be specifically enforced." 8.6 Lastly, he has relied on the judgment of the Apex Court in the case between Kashi Math Samsthan & Anr. v. Shrimad Sudhindra Thirtha Swamy & Anr. [(2010) 1 SCC 689], wherein it is held that:-
"26. A careful perusal of the aforesaid findings of the trial Court as well as the High Court and also after considering the submission of the respondent No. 1 that the respondent No. 1 had only abrogated some of his powers and not all and that he was still continuing as the Mathadhipathi of the Math, would prima facie show that the appellant No. 2 had failed to prove that he was made the Mathadhipathi of the Math by respondent No. 1 or respondent No. 1 had relinquished his right of the Mathadhipathi of the Math.
27. In view of the aforesaid finding, it is not necessary for us to go into the question on title of the Mathadhipathiship of the appellant No. 2 at this stage, which shall be decided in detail by the High Court while deciding the appeals on merits. But we make it clear that the findings made by the trial Court in the final Judgment and the High Court on the application for injunction in the pending appeals are to be treated as prima facie findings which shall not be taken to be final by the High Page 24 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT Court at the time of disposal of the appeals.
28. There is another aspect of this matter. It cannot be disputed that as per the custom of Sri Samsthan, Mathadhipathi Seat cannot be relinquished and respondent No. 1 shall continue to work as the Mathadhipathi of the Math till his demise and after his demise, the Shishya or the nominated successor of the respondent No.1 would assume the office of the Mathadhipathi. Further, it can not be said from the evidence on record that the appellant No. 2 on the basis of the proclamation dated 12th of December, 1994 was actually the Mathadhipathi as claimed by him atleast prima facie which could permit the appellant No.1 to obtain the order of injunction from the court. At the same time, we should be reminded that the appellant No. 2 had himself written a letter dated 4th of November, 1999 requesting the respondent No. 2 to relieve from the activities of the Math. It would also appear from the letter that the appellant No. 2 had addressed the respondent No. 1 as the Mathadhipathi of the Math.
29. The finding arrived at by the trial Court as well as by the High Court to the effect that the seat of Mathadhipathi can be transferred to the successor of the existing Mathadhipathi only after his death and not before, which is apparent from the customs and traditions of the Math, it is difficult to accept at least prima facie the case that the respondent No. 1 had relinquished the seat of Mathadhipathi in favour of the appellant No. 2 and such seat could be assumed by the appellant No. 2 before the death of the existing Mathadhipathi i.e. the respondent No. 1 or by any deed executed by the respondent No.1 relinquishing as the Mathadhipathi of the Math.
30. That being the position, we are in full agreement with the views expressed by the High Court as well as by the trial Court that the succession to the position of the Mathadhipathi can only be done after the death of the existing Mathadhipathi and not before it. That apart, as noted herein earlier, a perusal of the proclamation dated 12th of December, 1994 would not conclusively suggest that the respondent No. 1 had abdicated all his powers as Mathadhipathi of the Math in favour of the appellant No. 1."
9. Heard learned advocates for the appellants and respondents in both the matters at length.
10. After considering the rival submissions and on perusal of the record, the contention raised by the learned counsel Mr. Mehta that there is delay and laches in filing the suit cannot sustain for the respondent purchaser in view of the fact that the respondent Nos.4 and 4.1 have purchased the Page 25 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT property during pendency of the suit and started construction over the suit premises. There is nothing on record as to how huge construction is made before purchasing the land in dispute. Under the circumstances, I find substance in the submission made by learned advocate Mr. Gajjar that the respondents are not disclosing true facts and they have hide the true transaction before the Court.
10.1 I find substance in the submissions made by the learned advocate for the appellant that the judgment rendered in case of Mandali Ranganna & Ors. (Supra) is regarding granting injunction in trade-mark cases and property related cases are somewhat different. I also find substance in the submissions made by the learned advocate for the appellant that the judgment rendered in case of Kashi Math Samsthan & Anr. (Supra) would not be applicable to the facts of the present case. It was a case of heir-ship of Math, while in the present case we are dealing with the question of co-sharer. It is not in dispute that the original plaintiffs before the trial court are the co-owners of the suit premises. The trial Court has not considered the fact that the plaintiffs are co-owners/co-sharers in the disputed property and it is also not disputed by the defendants. For the benefit of the trial Court, I am stating the principles of co-owner, Page 26 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT which are as under:-
[a] A person's proprietary interest in land may be either sole or in conjunction with others. In the former case he holds the land in severally, and in the latter case, the several owners simultaneously have concurrent interest. Sole or separate ownership has a single form, but co-ownership assumes several forms. English Jurists have treated co-ownership under four heads (i) joint tenancy, (ii) tenancy in common, (iii) Coparcenary, and (iv) tenancy by entireties. The joint tenancy of English law had two features, viz. the right of survivorship and the co-
existence of the four unities of possession, title, time and interest.
[b] The joint tenants of English law formed together as one person and had equal right to the whole of the land. The tenancy in common of English law was distinct from joint tenancy. In the former case there was no right of survivorship and the essential unity was only of possession and the other three unities may or may not be present. As there was no right of survivorship, the tenants in common held the land in distinct and specific shares which had not yet been divided among the co-tenants. They had thus separate shares in a single property which had not yet been Page 27 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT partitioned among them. The common feature of both these forms of co-tenancy was that, while they lasted, no one could say which of them was the owner of any particular parcel of land.
[c] It was the common feature of both these types of tenancy that the co-tenants whether joint or in common, were said to be seised according to law (French) 'per my et per tout' which signified that each co-tenant held nothing by himself and yet the whole, together with the others. If there were two of them, no one of them had seisin of one moiety and the other of the other half.
Each had an undivided moiety of the whole and yet not the whole of an undivided moiety. In the words of Bracton, "Quilibit totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se'. he who has everything has (in reality) nothing;
of course, he (co-tenant) holds in common, the whole, and nothing in severally. It may here be mentioned that the word 'tenant' is to be construed in the widest sense as a person holding or possessing land under right or title like an owner, and not in the restricted sense of temporary occupancy of some other's land, in subjugation to him.
[d] The principle of joint tenancy, with its emphasis on the four unities, and the right of survivorship, is not known to Hindu Page 28 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT law except in case of coparceners of an undivided family. The approach to co-ownership was different according to the two schools. The Mitakshara recognised ownership of each coparcener over the whole of joint property and over each part thereof. This view Samudavik Svatvavad or the doctrine of ownership in the whole and bears some similarity to joint tenancy of English law. On the other hand Dayabhaga adhered to the doctrine of ownership in specified shares in the undivided property Pradeshik Svatvavad having similar features as in tenancy in common (vide Hindu Jurisprudence by Sen, pp. 145 and 146).
[e] If any one of the coparceners enjoyed more of the joint property than was his due, he was not forced to surrender the excess (vide Hindu Law In Its Sources, by Ganga Nath Jha, Volume II, p. 608). The Courts in equity in England have leaned against joint tenancy in Preference to tenancy in common. But for purposes of present discussion, the distinction between the two forms of co-owner-ship is of no moment as the right of every co-owner to the possession of the whole subject to the equal right of others to similar possession, is the common feature of both types of co-tenancy in England as well as in this country.Page 29 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021
C/AO/94/2020 CAVJUDGMENT [f] The corollary, which follows from the principle, that each joint tenant is seised of the whole estate, is that everyone of them has a right to the enjoyment of every inch of the property and to the ownership of every undivided fraction till the severance takes place. It also follows that, whereas each co-
owner is entitled to occupy the whole, in common with, the others, no one of them is entitled to the exclusive possession of any particular part of the property held in common. The equal right to the enjoyment of the entirety of joint property is subject to the limitation of the recognition of a similar right of use and enjoyment by the other co-owners.
[g] In other words, a co-owner is bound, so to exercise his rights in the joint property, as not to interfere with the rights of the other co-owners. From this, it does not follow, that a co-
owner is entitled to the exclusive possession of the whole or of any particular part, except, of course, by agreement or on partition, and in the latter event the co-ownership terminates. So long as a co-owner recognises equal rights of the other co-owner he may enter upon the common estate and take possession of the whole, but this does not confer upon anyone the right to exclude others, or, to appropriate to his sole use any particular portion of the common property.Page 30 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021
C/AO/94/2020 CAVJUDGMENT [h] It is true that it is of the essence of co-ownership that each
co-owner is, in theory, interested in every bit of the common property howsoever infinitesimal, and is entitled to be in possession of every such part and parcel of the property jointly with others. From this, it does not follow, that a co-owner can sue for eviction of the other merely on the ground of sole occupation of the joint property or of a portion thereof. Sole occupation in conceivable circumstances does not constitute an invasion of the rights of other co-owners. The effective user of joint property implies a division in space or in time.
10.2 In this view of the matter, neither the ejectment of sole occupation of a land, nor the erection of a substantial building on it, even if this is done without the assent of the plaintiff, can necessarily furnish a cause of action against the defendant. An erection of a permanent Structure cannot invariably be treated as conclusive evidence of ouster, nor it may be, that a property cannot be enjoyed without making extensive and substantial improvements. The test of ouster in such a case is whether the plaintiff has sustained substantial injury or his title has been denied.Page 31 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021
C/AO/94/2020 CAVJUDGMENT 10.3 In so far as a co-owner is entitled to the possession of
the entire common property he cannot be dispossessed by maintaining an action for ejectment at the instance of the others, and this is so, even in those cases, where the portion of the common property in his exclusive occupation exceeds his share to which he would be entitled on partition. The remedy of the co-
owners where they do not agree among themselves, either as to user or enjoyment in the event of exclusion is to sue for partition and for the settlement of accounts. In the event of an ouster of a co-owner the person ousted can maintain an action for joint possession though not for ejectment.
10.4 It is in consonance with rights implicit in joint ownership that one co-owner may be in exclusive possession of a parcel of property in excess of his share which might fall to him on partition, or even, he may be in exclusive possession of the entire joint property, Provided, however, that he concedes a similar right to the other co-owners. This right of exclusive possession exercised by a co-tenant exists so long as others are not ousted. It is only on proof of ouster or of clear denial of the title of the other co-sharers, that the exclusive or excessive possession of joint property ceases to be per tout, that is, on behalf of all, and such possession is no longer considered to be Page 32 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021 C/AO/94/2020 CAVJUDGMENT constructive of all co-sharers, for, it is then that the right of common enjoyment of the joint property is put in jeopardy. 10.5 The law permits a co-sharer to continue to remain, ad infinitum, in exclusive possession of a particular parcel and, subject to well recognised prohibitions, even make constructions on it. The exclusive possession for any length of time, in the absence of ouster, is not tantamount to an exclusive ownership. Exclusive possession of a co-owner is deemed to be with the consent of others. Of course, where by a mutual arrangement, between the co-owners, which is a matter of common occurrence, the co-owners choose to possess a separate parcel of the joint property in severally, such separate possession will not be interfered with at the instance of some co-sharers who may like to depart from the agreed settlement.
10.6 The Court, in such a case, will not interfere except in the case of an action for partition. In other words, the arrangement once arrived at, continues until it is abandoned with the consent of all, or, a co-sharer seeks remedy provided by suit for partition. It is always open to the co-owners to agree upon a particular mode or manner of enjoying their joint property.
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C/AO/94/2020 CAVJUDGMENT (1) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. Page 34 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021
C/AO/94/2020 CAVJUDGMENT (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.
(9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.
11. The trial Court has totally ignored these above. Under the circumstances, I am of the view that the act of the respondents in Appeal No.94 of 2020 would really prejudice the rights of the appellants and therefore, the appellants are entitled for injunction. I also agree with the submissions made by the learned advocate for the appellant that the trial court has failed to consider the principles of lis pendence. The order of the trial court in the Civil Appeal No.9092 of 2017 would be squarely applicable to the facts of the present case. It is needless to say that the question of lis pendence is not considered by the trial court.
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C/AO/94/2020 CAVJUDGMENT
12. Under the circumstances, I am of the view that the trial court has erred in not allowing the injunction qua all the respondents of the Appeal No.77 of 2020. So the order is required to be modified.
13. In the result, the Appeal From Order No.77 of 2020 is allowed and the Appeal From Order No.94 of 2020 is rejected. All the defendants of Special Civil Suit No.546 of 2017 [old No.163 of 2015] are hereby restrained from dealing with the suit property in any manner whatsoever and they shall maintain status-quo regarding the suit property till final disposal of the suit.
Both the Appeal from Orders stand disposed of accordingly.
In view of disposal of Appeal from Order No.94/2020, Civil Application does not survive. Hence, disposed of accordingly.
Sd/-
(A. C. RAO,J) KDC/DOLLY Page 36 of 36 Downloaded on : Tue Feb 16 02:44:38 IST 2021