Madhya Pradesh High Court
Palm Developersthrough Its Partner ... vs Mammu Patel on 8 November, 2024
NEUTRAL CITATION NO. 2024:MPHC-IND:31625 1 MA No.7839/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
MISCELLANEOUS APPEAL No.7839 of 2024
PALM DEVELOPERS PARTNERSHIP FIRM DULY
REGISTERED UNDER THE INDIAN PARTNERSHP ACT
THROUGH ITS PARTNER SHRI SUMIT S/O KALYANMAL
MANTRI AND FOUR OTHERS
...Appellants/Plaintiffs
AND
MAMMU PATEL S/O HAZI ISAQUE MOHD. PATEL AND
FOUR OTHERS
...Respondents/Defendants
Reserved on 04.11.2024
Pronounced on 08.11.2024
Appearance:
Shri Satish Bagadiya, learned senior counsel with Shri
Rohit Saboo, learned counsel for the appellants.
Shri Amit Agrawal, learned senior counsel with Shri
Sameer Ananat Athawale, learned counsel for the
respondent No.1.
Shri Ravindra Chhabra, learned senior counsel with
Shri Aman Arora, learned counsel for the respondent
No.2.
Shri Shashank Sharma, learned counsel for the
respondent No.5/State.
ORDER
The present miscellaneous appeal has been filed against the order in I.A. No.1 of 2024 Civil Original Suit No.713-A/2024 passed by learned IX District Judge, Indore (M.P.) dated 11.09.2024 granting temporary injunction against the Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 2 MA No.7839/2024 defendant No.2 (Palm Developers) directed not to sell the disputed land elsewhere or do any construction work on it till further orders or final disposal of the case whichever is earlier. The said order is under challenge by way of this miscellaneous appeal.
02. The appellants No.1 to 4 herein are the respondent Nos.1 and 2 (I, III and IV) in I.A. No.1 of 2024 and they are defendant Nos.2 and (I, III and IV) in the suit before the trial court. The respondent No.1/Mammu Patel herein is the petitioner in the above I.A. and plaintiff in the suit before the trial court.
03. The facts of this case are that respondent No.1/plaintiff filed a suit against the appellants/defendant Nos.1, 3 and 4 for declaration to declare them that they are co-owners of suit land and partition of 20 Bighas each between plaintiff and defendant Nos.1, 3 and 4 from the suit property and seeking permanent injunction and for declaration declaring the respective three sale deeds dated 17.11.2021 are null and void.
04. Along with the suit, the plaintiff filed an application against the defendant No.1 Anwar Patel and defendant No.2 (Palm Developers) and others. The averments in the plaint as well as application that the disputed suit property being joint property of the plaintiff and defendants Nos.1, 3 and 4 as per their family arrangement dated 28.07.1993. All had a share in this suit land, the defendant No.1 sold the suit land to defendant No.2 (Palm Developers) claiming it to be his own, the first defendant had no right to sell the property. The disputed property being jointly owned by plaintiff's parents i.e. Hazi Ishaq Patel and Hajjani Amina Bee, plaintiff-Mammu Patel, defendant No.1 Anwar Patel and defendant No.3-Islam Patel, a family arrangement was made between them on 28.07.1993. As per the family arrangement they all are in possession of their shares in the disputed property in their respective shares. The existence of family settlement deed has not been denied by defendant No.1 in the proceedings before the Revenue Court. The disputed property of joint ownership Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 3 MA No.7839/2024 has been sold by defendant No.1 along with Dule Singh to defendant No.2 through three registered sale deeds dated 17.11.2021 by claiming that it is owned by him. If the disputed land is sold by defendant No.2 (Palm Developers) to any third party or imposes burden on it by taking a loan etc., then the plaintiff will suffer immense loss and under the facts and circumstances, it is necessary to prohibit the defendant No.2 from selling the disputed land to anyone else or making any construction in the said property. The plaintiff will unnecessarily suffer infinite loss, which will not be possible to compensate in terms of money. The plaintiff has a prima facie case and balance of convenience in his favour since the property has been sold by defendant No.1 and Dule Singh to defendant No.2 (Palm Developers) is a partnership firm, the sale of property etc. is completely possible. Therefore, he filed an interlocutory application to restrain the defendant No.2 from alienating the suit land or making any construction till the disposal of the suit.
05. The defendant No.1 filed reply and denied all the allegations made in the plaint and averred that plaintiff has not sought relief of temporary injunction against defendant No.1/respondent No.1, therefore, it is not necessary for him to submit a reply. Further averred that the plaintiff has filed a suit in relation to the disputed land. According to the allegations made in the plaint on the basis of sale agreement dated 10.06.1985 for the disputed land which was executed in favour of defendant No.1. The title of the disputed land is vested with defendant No.1 and on the basis, he is claiming 20 Bighas land was arranged in favour of the plaintiff in the family partition on 28.07.1993 and pray for temporary injunction. Further averred that the respondent No.1/defendant No.1 entered into the sale agreement dated 10.06.1985 on the basis of which the plaintiff is claiming title over the suit land. The said sale agreement was completely ineffective vide order dated 08.03.2016 in Revision Petition No.275/2011. As such, defendant No.1 has no title over the disputed land. Original land owner, Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 4 MA No.7839/2024 Dule Singh acquired the possession of the entire disputed land, later, the said Dule Sing along with defendant No.1/Anwar Patel has sold the property on 17.11.2021 through three registered sale deeds in favour of Palm Developers. Therefore, the plaintiff cannot get any relief much less temporary injunction on the basis of family partition dated 28.07.1993 and the said settlement letter is of no value, therefore, the plaintiff is not entitled to get any relief and the petition may be dismissed.
06. The defendant No.2 (Palm Developers) submitted a detailed reply that the plaintiff filed a suit for declaration on the basis of family partition dated 28.07.1993, on the basis of agreement of contract dated 10.06.1985. Further averred that the suit has not been filed within period of three years from the date of agreement and suit for possession has not been filed within a period of twelve years from the date of agreement, hence, the suit of the plaintiff is barred by limitation.
(i) The plaintiff would not get any right over the suit land on the basis of sale agreement. The said sale agreement dated 10.06.1985 has been completely rendered ineffective and void in order dated 08.03.2016 in Civil Revision No.275/2011 by the Hon'ble High Court. On the basis of sale agreement, the defendant No.1 has no title and right over the disputed property. Further averred that the original land owner Dule Singh was in possession of the property, this defendant examined the order of the Hon'ble High Court in Civil Revision No.275/2011 dated 08.03.2016, defendant No.2 has purchased the suit property through three separate registered sale deeds from defendant No.1 and paid substantial consideration of amount of Rs.23,23,95,074/-. Further averred that the said sale deed have been executed by land owner Dule Singh along with defendant No.1 whose name was recorded in revenue record as Bhuswami.
(ii) Further averred that the plaintiff cannot get any assistance on the basis of sale agreement dated 10.06.1985. The plaintiff has not submitted any Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 5 MA No.7839/2024 documents on the basis of which he is claiming the property as joint family property of defendant Nos.1, 3 and 4. Further averred that defendant No.2/firm is real owner and bonafide purchaser developed the suit land by carrying out development work on the disputed land. The plaintiff does not acquire any title from the disputed land. Prima facie case, balance of convenience in favour of defendant No.2, therefore, he prays for dismissal of the petition.
07. Basing on the pleadings of the respective parties, learned trial court framed the following points for consideration to grant temporary injunction.
(i) Has the plaintiff presented prima face case?
(ii) Is balance of convenience in favour of plaintiff?
(iii) Will irreparable loss be caused to the plaintiff, if temporary injunction is not granted in his favour?
08. The learned trial court on analysis of the pleadings and documentary evidence held that keeping in view the family agreement in partition, if the plaintiff is found entitled to get 20 Bighas of land from the disputed land and defendant No.2 starts construction on the said land then certainly multiplicity of the litigation will increase. Further observed that either the plaintiff is a party to the suit filed by Anwar Patel or in Civil Revision No.275/2011. The order of Hon'ble High Court in civil revision will apply to the defendant No.1. Further observed that the plaintiff will face a lot of inconvenience as compared to defendant No.2, thus, balance of convenience is also in favour of plaintiff in such situation the fact cannot be denied that if the defendant No.2 is not stopped from alienating the disputed land and doing construction work on it, then the plaintiff will suffer irreparable loss and granted temporary injunction against the defendant No.2 is ordered not to sell the disputed land elsewhere and not to make any construction work on it till further orders or final disposal of this suit, whichever is earlier.
09. Feeling aggrieved by and dissatisfied with the impugned order dated Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 6 MA No.7839/2024 11.09.2024 passed by 9th District Judge, Indore granting temporary injunction against defendant No.2 (Palm Developers) as stated supra, the defendant No.2 (Palm Developers) has preferred the present miscellaneous appeal.
10. Learned Senior Counsel, Shri Satish Bagadiya assisted by Shri Rohit Saboo submits that it is an undisputed fact that Dule Singh was the recorded Bhuswami of the suit land in question, who was not made a party to the suit proceedings. Further submits that respondent No.2 Anwar Patel got agreement of sale dated 10.06.1985 from Dule Singh. On that basis, his name was mutated in the revenue record. Further submits that original landlord has right to sell the suit land to someone else then Anwar Patel filed a suit for declaration claiming that the said sale deed dated 15.06.1995 and 19.06.1995 executed by Dule Singh and others (defendant Nos.1 and 2 in the suit No.8-A/2011) declared to be null and void and also sought for permanent injunction. Further he submitted that in that suit (Suit No.8-A/2011) the defendants filed an application under Order 7 Rule 11 of CPC to reject the plaint on the ground of limitation. The learned trial court dismissed the same and matter carried to the Hon'ble High Court in Civil Revision No.275/2011 order dated 08.03.2016 and observed that the suit filed by respondent No.1 Anwar Patel is barred by limitation and the plaint deserves to be rejected and consequently, the civil revision allowed. Further submitted that unless there is sale deed in favour of Anwar Patel, he cannot get any title under the agreement. Further submitted that sale agreement is ineffective and defendant No.1 has no title over the suit land. Further submits that in the light of the order in civil revision the property belongs to Dule Singh, because the Anwar Patel's name was mutated in the revenue record basing on the agreement of sale, the appellant obtained three sale deeds from Anwar Patel along with Dule Singh under the three registered sale deeds dated 17.11.2021, therefore, the Palm Developers became title holder of the suit land, further argued that alleged family partition deed is not registered and, therefore, the unregistered Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 7 MA No.7839/2024 partition deed is of no value, from the date of purchase the suit property defendant No.2 is in possession of property and developing the subject land. The respondent No.1 has no title to this property and merely saying that brothers are getting 1/3rd shares does not amount prima facie case. Further submitted that the trial court has committed an error restraining the appellant/Palm Developers from carrying out any construction work. Further submits that appellant has purchased the suit land from its original owner and was in possession of the suit property. The alleged sale deed cannot be said to be illegal as the appellant obtained sale deed by paying sale consideration to Dule Singh and respondent No.2/Anwar Patel, further submits that findings given by the learned trial court that because the sale consideration was paid by the appellants to the respondent No.2, shows that the respondent Nos.1, 2 and 3 are joint owners of the said property. Further submits that learned trial court has failed to appreciate the relevant provisions and law and granted temporary injunction against the principles of law. The plaintiff filed a false suit without having right, therefore, he prays that the temporary injunction granted against the appellant is to be set aside and allow the appeal.
11. Shri Amit Agrawal, learned senior counsel assisted by Shri Sameer Ananat Athawale, submitted arguments on behalf of respondent No.1 that the order of the trial court granting temporary injunction is well reasoned considering all the pleadings and the documents filed by the respective parties and restraining the defendant No.2/Palm Developers not to alienate the suit property or not to make any construction in the suit land till the disposal of the suit and it is appropriate and equitable relief of both the parties. Further submits that originally, Dule Singh's name was recorded as Bhuswami for the land covered survey Nos.2/2 and 4/1. On 10.06.1985, Dule Singh executed an agreement of sale pertaining to suit land covered under survey numbers (supra) in favour of Anwar Patel and delivered the possession of the subject land and Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 8 MA No.7839/2024 received sale consideration. Further submits that there was a partition recorded between Mammu Patel, Anwar Patel, their brother and parents. It is an undisputed fact that the present appellant along with son and wife of Anwar Patel purchased the suit land as they were partners to the firm. Further submitted that the appellant filed reply in the above interlocutory application before the trial court and para Nos.2, 3 and 4 of the reply do not deny the existence of partition deed between family members, Mammu Patel, Anwar Patel, his brother and parents dated 28.07.1993. Further submits that in the reply filed by the respondent No.2/Anwar Patel stated that sale deeds have been executed by Dule Singh, since the name of defendant No.1/Anwar Patel was recorded as Bhuswami in revenue record, he was made party to the sale deed which itself shows that it was joint family property of the plaintiff and his brothers on the basis of family partition agreement dated 28.07.1993, therefore, plaintiff is having 20 Bighas share of suit land. Further submits that plaintiff has proved his prima face case and it is not to be confused with prima face title which has to be established on the basis of evidence at the time of trial. Further submits that if Dule Sing is real owner of subject land, there is no necessity to Anwar Patel's executing the sale deed along with Dule Singh by receiving huge amount of sale consideration. If Anwar Patel was not the owner of the suit property, the appellant should not have paid the sale consideration to Anwar Patel by paying small amount to real owner (Dule Singh). Therefore, it is clear case of connivance in between them in order to deprive the right of Mammu Patl, they have executed sale deed in favour of Palm Developers, therefore, plaintiff seeks relief to cancel the respective sale deeds declare to be null and void apart from declaration, partition and permanent injunction. Considering the above circumstances, learned trial court has arrived at the conclusion that plaintiff makes out prima facie case, balance of convenience, if injunction not granted in favour of respondent No.1/plaintiff certainly it causes irreparable loss to the Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 9 MA No.7839/2024 plaintiff. Further submits that court below was justified in arriving at the said conclusion restraining the defendant No.2 (Palm Developers) from alienating the subject property or to make any construction work on it till further orders or final disposal of the suit and order passed by learned trial court is well reasoned and neither illegality nor irregularity and warrants no interference and the present miscellaneous appeal is liable to be dismissed.
12. Shri Ravindra Chhabra, learned senior counsel assisted by Shri Aman Arora, learned counsel for the respondent No.2 nothing to say anything except supporting the pleadings of the appellant. Further submits that the suit of the plaintiff rests on the agreement of sale dated 10.06.1985. The application filed under Order 7 Rule 11 of CPC before the trial court was dismissed and later, Hon'ble High Court allowed Civil Revision No.275/2011 and rejected the plaint and therefore the suit of plaintiff/Mammu Patel basing on the agreement of sale is not maintainable. As per the order of Hon'ble High Court in Civil Revision No.275/2011 dated 08.03.2016, Anwar Patel has no right over the suit land and cannot be said to be Bhuswami. When no right is accrued on the basis of agreement of sale date 10.06.1985, the plaintiff is estopped from claiming share in the suit land. The suit land was sold by original owner Dule Singh along with Anwar Patel in favour of Palm Developers, therefore, the suit of the plaintiff is misconceived. Learned trial court has not properly appreciated the factual aspects and granted temporary injunction against law, therefore, temporary injunction granted by the trial court is liable to be set aside.
13. After hearing the rival arguments advanced on behalf of the parties and perusal of the record, I am of the view that the following points arose for consideration in this appeal:-
"(i) Whether the trial court considered the principles of grant temporary injunction i.e. prima facie case, balance of convenience and irreparable loss?
(ii) Whether the trial court erred in granting temporary injunction as sought for by the plaintiff and whether the order of the trial court is on proper appreciation of facts and needs Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 10 MA No.7839/2024 any interference?"
14. In view of the rival submissions, the points for determination in this appeal are as under:-
Points Ordinarily, the three main principles which govern the grant or refusal of injunction are (a) prima facie case; (b) balance of convenience; and, (c) irreparable injury. In grant and refusal of injunction, pleadings and documents play vital role. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis, the Court must adjudge the existence or otherwise of a prima facie case. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the plaintiffs, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. Only on weighing competing possibilities or probabilities of likelihood of injury, an injunction would be granted. The Court should not interfere only because the property is a very valuable one. In dealing with such matters, the Court must make all endeavours to protect the interest of the parties by balancing the conveniences and inconveniences. In addition to the basic principles, temporary injunction, being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands.
15. The plaintiff filed a suit on the plea that the disputed property being joint family property of the plaintiff's parents - Hazi Ishaq Patel and Hajjani Amina Bee, plaintiff-Mammu Patel, defendant No.1 Anwar Patel and defendant No.3- Islam Patel, a family arrangement was made in between them on 28.07.1993. On the basis of family partition agreement and claimed 20 Bighas share in the suit property. Since defendant No.1 i.e. Anwar Patel who is none other than brother Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 11 MA No.7839/2024 of the plaintiff has no right to execute the sale deed along with Dule Singh in favour of defendant No.2/Palm Developers, therefore, he sought for declaration declaring the three sale deeds dated 17.11.2021 as null and void and apart from the declaration, partition and permanent injunction.
16. In the instant case, defendant No.2/Palm Developers appellant herein obtained three sale deeds jointly executed by Dule Singh along with Anwar Patel dated 17.11.2021. (1) first sale deed (No.179132021A1965639) executed by Anwar Patel and Dule Singh on 17.11.2021 in favour of Palm Developers and Anwar Patel received Rs.3,28,56,000/- and remaining outstanding consideration of amount of Rs.5,00,000/- was received by Dule Singh from Buldhana Urban Cooperative Societies, (2) second sale deed (No.179132021A1965643) dated 17.11.2021 and Anwar Patel received Rs.7,31,04,000/- and (3) as per third sale deed (No.179132021A1965672) dated 17.11.2021 and Anwar Patel received Rs.12,64,32,000/-, covered in survey No.2/2 and 4/1 of the property, Anwar Patel/defendant No.1 received huge sale consideration than Dule Singh.
17. According to the appellant/defendant No.2, Anwar Patel has no title in view of the revisional order passed by Hon'ble High Court dated 08.03.2016. Having knowledge of the said order, appellant/Palm Developers obtained three sale deeds from Dule Singh along with Anwar Patel by paying total sale consideration of Rs.23,23,95,074/-. According to defendant No.2, Dule Singh is the owner of the property and Anwar Patel has no legal right over the suit land, however, the defendant No.2 obtained three sale deeds along with defendant No.1. In the present case, one party is competent to execute the sale deed and another party is not competent to execute the sale deed in favour of Palm Developers. Therefore, whether the said sale deeds said to have been executed by them in favour of Palm Developers is valid or not has to be decided by civil court at the time of trial. The plaintiff seeks relief of declaration that the said Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 12 MA No.7839/2024 sale deeds said to have been executed by Anwar Patel along with Dule Singh in favour of Palm Developers be declared to be null and void is appropriate. In the reply filed by Palm Developers, it is stated that defendant No.2/Palm Developers obtained three sale deeds executed by the actual owner of the land, Dule Singh. Only because the name of defendant No.1/Anwar Patel was recorded in the revenue record as Bhuswami, he was made a party to the sale deeds. In the grounds of appeal, it is stated in para 3 that the findings given by the trial court that because sale consideration was paid by the appellant to the respondent No.2 shows that the respondent Nos.1 to 3 are joint owners of the said property.
18. The plaintiff filed a suit for declaration, permanent injunction and partition claiming 20 Bighas share in the suit land as the subject suit property is joint family property of the parents of the plaintiff and Anwar Patel and his brothers (defendant Nos.1 and 3) under the family arrangement dated 28.07.1993. Therefore, no doubt under the Muslim Law regarding family partition dated 28.07.1993 was unregistered but, legally it should be registered it can be taken as collateral purpose in the suit, the validity of the partition deed is to be decided by the trial court at the time of trial. Further, appellant and defendant No.1 have not denied the execution of partition deed. In such circumstances, learned trial court after analysing the evidence and perusal of the documents came to a conclusion that plaintiff has established prima facie case and further observed that the plaintiff has established that there is fair question regarding legal right in his favour. Further observed that prima facie case is not to be confused along with prima facie title which has to be established on the evidence during the trial. The only prima facie case is substantial question raised, the bonafide of which needs to be investigated and the matter of evidence on merits.
19. The trial court further observed that respective sale deeds being made to a Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 13 MA No.7839/2024 firm and the said firm is comprising wife and son of Anwar Patel, it can be said that the conduct of defendant No.1 is prima facie suspicious. Further holds that after taking into consideration all the facts, the learned trial court granted temporary injunction directing the defendant No.2 not to sell the disputed land elsewhere and not to make any construction work on it till further orders or final disposal of the suit and granted temporary injunction relying the judgments in the cases of (1) Nagar Palika Parishad, Malajkhand v. Hindustan Copper Ltd., Malajkhand Copper Project, 2009 (1) MPHT, 48; (2) Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719; (3) Rajesh Mishra Vs. Ram Vilas Singh Kushwahs, 2015 (2) JLJ, 101; (4) Meghmala and others Vs. G. Narasimha Reddy and others, 2010 (8) SCC 383 and (5) Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana and another, 2012 (1) SCC 656, and by analysing the pleadings and following above judgments granted injunction in favour of plaintiff in the suit.
20. Learned counsel for the respondent No.1/Mammu Patel placed reliance in the cases of Mohd. Mehtab Khan and others Vs. Khushnuma Ibrahim Khan and others1. Para No.20 read as follows:-
"20. The appellate court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the appellate court was wrong in its conclusions what is sought to be emphasised is that as long as the view of the trial court was a possible view the appellate court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727]"
21. In the case of Wander Ltd. v. Antox India (P) Ltd.2 Hon'ble Apex Court has held as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the
1. (2013) 9 SCC 221
2. 1990 Supp SCC 727 Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 14 MA No.7839/2024 plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. ........ The court must weigh one need against another and determine where the 'balance of convenience' lies."
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case....
13........
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 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 that 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 [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] '...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'."
22. In the instant case, the plaintiff claiming title over the subject property Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 15 MA No.7839/2024 and seeking for cancellation of sale deeds and partition even in the title dispute, if any, will be decided after the evidence let in by the parties. It is too early to go into title dispute that to at the interlocutory stage without the evidence available on record, therefore, the order of the trial court is appropriate and the order of the trial court is not arbitrary or perversity. The learned trial court dealt with the factual aspects and granted temporary injunction. Therefore, in the light of the above judgment supra, the learned trial Judge settled the principles of law and considered all the material available on record granted temporary injunction, hence, it is not justified to interfere with the order of the trial court.
23. In the case of Shankerlal v. State of M.P.3, at page 80, it has been held as under:-
"The principles...on which temporary injunctions are issued were recently examined by the House of Lords in American Cyandmid v. Ethicon [[1975] 1 All ER 504.] . The following passages from the speech of Lord Diplock are instructive on the point:--
........ The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.......
The principle that generally the plaintiff is not required to make out a clear legal title, but has only to satisfy the court that he has a fair question to raise as to the existence of the legal right claimed by him in the suit is well recognized in India........
The Court will, in many cases, interfere to preserve property in status quo during the pendency of a suit in which the right to it ought to be decided, and that, without expressing, and often without having the means of forming any opinion as to such rights......
24. By following above judgments, learned trial court granted temporary injunction to avoid multiplicity of litigations and preserved the property until disposal of the suit. The right of the defendant No.2/ Plam Developers shall no way be affected by mere temporary injunction granted by the trial court. Learned trial court recorded the findings while granting temporary injunction
3. ILR 1979 MP 74 Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 16 MA No.7839/2024 about the prima face case, balance of convenience and irreparable loss.
25. In the case of Gujarat Bottling Company Limited and others Vs. Coca Cola Company Limited4, the Hon'ble Apex Court observed as under:
"43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trail on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be (1995) 5 SCC 545 adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an under taking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial."
26. In the case of Kashi Math Samsthan Vs. Shrimad Sudhindra Thirtha Swamy5, the Hon'ble Apex Court held as under:
"16. It is well settled that in order to obtain an order of injunction,
4. 1995 (5) SCC 545
5. 2010 (1) SCC 689 Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 17 MA No.7839/2024 the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind.......
27. In the case of Seema Arshad Zaheer & Ors vs Municipal Corporation of Greater Mumbai ando thers6, the Hon'ble Apex Court has held as under:-
"29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."
28. By following the above judgments, in case on hand, as discussed supra, the trial court recorded findings about prima facie case, balance of convenience and irreparable loss sine qua non for grant of injunction. Therefore, the learned trial court exercised its discretion reasonably granted temporary injunction and, therefore, in my considered view, interference by appellate court would normally not be justified in interfering with the order of the trial court accordingly the trial court exercised its discretion while granting temporary injunction.
6. 2006 (5) SCC 282 Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 18 MA No.7839/2024
29. Under the above facts and circumstances, respondent No.1/Mammu Patel should have prima facie case for temporary injunction which is debatable question to be investigated which can be decided by taking evidence and plaintiff has proved prima facie case which is not to be confused with prima facie title which has to be established on evidence during the course of trial, prima facie case is substantial question and bonafide which needs to be decided at the time of trial on merits. The family partition agreement submitted by Mammu Patel clearly mentions 20 Bighas share in the suit property in survey No.2/2 and 4/1. Apart from all, the very sale deed executed by Anwar Patel along with Dule Singh creates doubt whether there is a collusion in order to deprive the right of the plaintiff or his family members. Even according to the appellant, after the revisional order passed by Hon'ble High Court in Civil Revision 275/2011, he has no right over the subject property, even then Anwar Patel and Dule Singh executed the sale deed in favour of appellant/Palm Developers and wife and son of Anwar Patel are the partners of the firm as mentioned in the respective sale deeds. The conduct of the parties is also relevant factor and the sale deeds being made for selling the land to firm and said Palm Developers comprising son and wife of defendant No.1/Anwar Patel can be said that the conduct of defendant No.1 is prima facie suspicious.
30. According to the appellant, Dule Singh is the owner of the property and because of name of Anwar Patel mutated in the revenue record, he executed sale deeds along with Dule Singh. Therefore, one is a competent and another one is incompetent. The competent (Dule Singh) has the right over the property according to the appellant to execute the sale deed and incompetent (Anwar Patel) has no right to execute the sale deeds. He joined with Dule Singh executed the sale deeds by receiving the huge consideration from Palm Developers. Therefore, plaintiff/Mammu Patel took plea that suit property is joint family property owned by plaintiff's parent Hazi Ishaq Patel and Hajjani Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 19 MA No.7839/2024 Amina Bee, plaintiff-Mammu Patel, defendant No.1 Anwar Patel and defendant No.3-Islam Patel as per the family arrangement made between them on 28.07.1993 and therefore, they claimed share in the property.
31. The co-owner whose share in the joint property remained undetermined cannot transfer the entire property by defendant No.1 Anwar Patel along with Dule Singh and it has to be decided during the course of trial whether the suit land is a joint family property or not? Whether the sale deed executed by defendant No.1 Anwar Patel along with Dule Singh is valid and in accordance with law, it has to be decided by the trial court during the course of trial.
32. The subject property which is undivided is left with the co-owners to proceed in accordance with law to get their shares determined under agreement of partition dated 28.07.1993. Whether the agreement of partition is binding on the parties or not will be decided during the course of trial. Under such circumstances, if the trial court did not grant temporary injunction against Palm Developers, he would have sold the property to third party and multiplicity of litigation may increase and causes irreparable loss even if he succeeds in the suit.
33. In the case of SK. Golam Lalchand Vs. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes and others7, it has been held as under:
"24. The suit property which is undivided is left with the co- owners to proceed in accordance with law to get their shares determined and demarcated before making a transfer.
25. The point for determination formulated in paragraph 12 above is accordingly answered and it is held that Brij Mohan alone was not competent to transfer the entire property without getting his share determined and demarcated so as to bind the other co-owners. Accordingly, the defendant-appellant S.K. Golam Lalchand has rightly been restrained by the decree of injunction in acting in derogation of the propriety rights of the co-owners until and unless the partition takes place. "
34. Therefore, bare reading of the plaint in particular the relief shows that the
7. 2024 (6) Supreme 736 Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 20 MA No.7839/2024 plaintiff admit that the defendant No.1/Anwar Patel and other family members are co-sharers in the suit property along with him. Therefore, plaintiff seeks temporary injunction against the purchaser Palm Developers not to alienate the suit land and not to make any constructions on it till the disposal of the suit. It is on the first principle that it co-sharer who is claiming partition on the basis of partition agreement who is claiming share is always free to sell or otherwise assigned it to third party. It is true that co-owners of his share cannot transfer any particular portion of the property without partition by metes and bounds. The defendant No.1/Anwar Patel along with Dule Singh transferred the suit land to Palm Developers without metes and bounds of the particular portion of the suit property commensurate to the plaintiff's share. Absolutely, there is no right of defendant No.1/Anwar Patel to transfer the property along with Dule Singh in favour Palm Developers and its partners as well as son and wife of defendant No.1/Anwar Patel, such sale being made in favour of Palm Developers comprising son and wife of defendant No.1/Anwar Patel, the conduct of defendant No.1/Anwar Patel is prima facie suspicious. Therefore, the trial court has to examine whether the sale deed executed by defendant No.1 is in accordance with law or not.
35. Apart from all the above legal aspects even in the instant case, the appellant has taken specific plea that defendant No.1 Anwar Patel got agreement of sale dated 10.06.1985 executed by Dule Singh in survey No.2/2 and 4 and paid sale consideration to Dule Singh. He could not obtain sale deed within three years. The suit land covered under agreement of sale dated 10.06.1985 was sold to third party under registered sale deed 15.06.1995 and 19.06.1995 after coming to know about the sale, Anwar Patel filed a suit No.8-A/2011 seeking for declaration of the sale deed dated 15.06.1995 and 19.06.1995 executed by defendant No.1 and defendant No.2 in favour of defendant Nos.3 to 5 as null and void. After receiving notices in the civil suit, the defendant Nos.4 to 6 has Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 21 MA No.7839/2024 filed an application under Order 7 Rule 11 of CPC to reject the plaint on the ground of limitation. The learned 21st Additional District Judge, Indore dismissed the petition and against the order of trial court dated 17.10.2011, the respondents /defendant Nos.4 to 6 filed Civil Revision No.275/2011 and passed an order dated 08.03.2016 reads as follows:
"25. In view of the aforesaid, the suit filed by the Respondent No.1 is clearly barred by law and allowing its continuance would be gross misuse of process of law, hence, the plaint deserves to be rejected and consequently, the suit deserves to be dismissed. Resultantly, the present civil revision stands allowed. The application preferred under Order 7 Rule 11 of CPC, 1908 stands allowed and the plaint is rejected"
36. In the light of the above findings, the earlier sale transactions made by Dule Singh and family with the same subject land under survey No.4/1 and 2/2 covered in the sale deeds dated 15.06.1995 and 19.06.1995 have become valid. In the present case, Dule Singh and Anwar Patel have no right over the suit land. Both of them were not absolute owners of the subject land on the date of three sale deeds dated 17.11.2021 said to have been executed by Dule Singh along with Anwar Patel, therefore, the said sale deeds came into the existence under the scrutiny by trial court at the time of trial. Hence, the plaintiff seeks for declaration declaring the three sale deeds dated 17.11.2021 to be null and void. This issue has to be examined by trial court about the validity of the sale deeds. Till then, the appellant herein has no right over the suit land either to alienate the property or making any constructions on it till the disposal of the suit. The order of the trial court is appropriate to protect the plaintiff against injury by violation of his right for which he could not adequately be compensated and there is every need to protect the rights of the plaintiff and this Court will not interfere with the order of trial court as observed supra, the trial court considered all the material available on record and granted temporary injunction in favour of Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 22 MA No.7839/2024 plaintiff. The learned trial court will examine the agreement between Dule Singh and Anwar Patel dated 10.06.1985 and the respective sale deeds dated 15.06.1995 and 19.06.1995 said to have been executed in favour of defendant Nos.3 to 5 and seeks declaration in suit No.8-A/2011 has to be examined and the property covered under those documents referred supra and property covered under the suit are one and the same has to be decided by trial court during the trial.
37. In the judgment of Hon'ble Apex Court in Mohd. Mehtab Khan (supra) in para Nos.21 and 22, it has been held as under:-
"21. Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation: (Wander Ltd. case [Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727] , SCC p. 533) "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 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 that 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) (P) Ltd. v. Pothan Joseph [AIR 1960 SC 1156 : (1960) 3 SCR 713] :
(AIR p. 1159, para 9) '9. ... These principles are well established; but, as has been observed by Viscount Simon in Osenton (Charles) & Co. v. Johnston [1942 AC Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10 NEUTRAL CITATION NO. 2024:MPHC-IND:31625 23 MA No.7839/2024 130 : (1941) 2 All ER 245 (HL)] : (AC p. 138) "... 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."
22. Though the above discussions would lead us to the conclusion that the learned Appellate Bench of the High Court was not correct in interfering with the order passed by the learned trial Judge we wish to make it clear that our aforesaid conclusion is not an expression of our opinion on the merits of the controversy between the parties. Our disagreement with the view of the Division Bench is purely on the ground that the manner of exercise of the appellate power is not consistent with the law laid down by this Court in Wander Ltd. [Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727] Accordingly, we set aside the order dated 9-10-2012 [Khushnuma Ibrahim Khan v. Asadullah Khan, (2012) 6 Bom LR 3502] passed by the Appellate Bench of the Bombay High Court and while restoring the order dated 13-4- 2012 of the learned trial Judge .......
38. Therefore, there is no material which would show that the trial court exercised its jurisdiction illegally or with material irregularities. In view of the matter, this Court does not find any ground to interfere with the order of the trial court. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court may not justify interference with the trial court's exercise of discretion and when there is a title dispute and challenge the sale deed stated supra will be decided after evidence is let in by the parties. The order of the trial court is well reasoned and needs not interference.
39. In view of the above discussion, I find no material illegality or irregularity in the order dated 11.09.2024 passed by learned trial court and therefore, the miscellaneous appeal is dismissed and findings of trial court are affirmed.
Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10NEUTRAL CITATION NO. 2024:MPHC-IND:31625 24 MA No.7839/2024 Accordingly, the present miscellaneous appeal stands dismissed.
40. All the pending applications, if any, stand disposed off.
(Duppala Venkata Ramana, J) N.R. Signature Not Verified Signed by: NARENDRA KUMAR RAIPURIA Signing time: 12-11-2024 10:20:10