Gujarat High Court
Vimlaben Daughter Of Vithalbharti ... vs Chimanbhai Vithalbharti Gosai (Decd) ... on 3 February, 2014
Author: S.G.Shah
Bench: S.G.Shah
C/AO/89/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 89 of 2013
With
CIVIL APPLICATION NO. 2677 of 2013
In
APPEAL FROM ORDER NO. 89 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
============================================================= VIMLABEN DAUGHTER OF VITHALBHARTI GOSAI (DECD) &
2....Appellant(s) Versus CHIMANBHAI VITHALBHARTI GOSAI (DECD) THROUGH LEGAL HEIRS &
6....Respondent(s) ============================================================= Appearance:
MR RR MARSHAL with MR ARPIT A KAPADIA, ADVOCATE for the Appellant(s) No. 1 - 1.3 , 2 - 3 MR SHALIN MEHTA, SR. COUNSEL WITH MR HARNISH V DARJI, ADVOCATE for the Respondent(s) No. 7 MR PARTHIV B SHAH, ADVOCATE for the Respondent(s) No. 3 NOTICE SERVED for the Respondent(s) No. 1.1 , 1.2.1 - 1.2.6 , 1.3 , 2.1 - 2.4 , Page 1 of 16 C/AO/89/2013 JUDGMENT 4-6 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 03/02/2014 ORAL COMMON JUDGMENT Appeal has been pending for admission since long and both the parties have agreed to decide the appeal finally. Therefore, appeal is Admitted. Mr. Parthiv B Shah and Mr. Harnish Darji, Ld. Advocates waive service of notice of admission on behalf of respondent nos. 3 and 7 respectively.
2 Heard Ld. Sr. counsel Mr. RR Marshal with Ld. Advocate Mr. Arpit Kapadia for the appellants, Ld. Sr. Counsel Mr. Shalin Mehta with Mr. HV Darji for respondent no. 7 and Mr. Parthiv B Shah, Ld. Advocate for respondent no. 3. Rest of the respondents though served, are absent.
3 The impugned order in the appeal is dated 27/4/2012 passed by the Ld. 7th Addl. Sr. Civil Judge, Vadodara, below application exh. 5 for interim injunction, in Special Civil Suit No. 595/2007, whereby the prayer made by the plaintiffs to restrain the defendants from alienating the suit properties in any manner and to keep position of suit property in same condition, was rejected.Page 2 of 16
C/AO/89/2013 JUDGMENT 4 Therefore, original plaintiffs are appellants and original defendants are
respondents in this appeal and they are referred to in the same capacity in this judgment.
5 The plaintiffs' suit was for getting their undivided share from the ancestral suit properties and for cancellation of the sale-deed in favour of defendant nos. 3 to 7 on the ground that though they are legal heirs of the same predecessor in title of the suit properties with defendant nos. 1 and 2, defendant nos. 1 and 2 had dealt with the property in their own manner without consent and information of the plaintiffs and created third party right in the suit property by executing the sale-deed in favour of defendant nos. 3 to 7.
6 As against that, the defence version is to the effect that the original predecessor of plaintiffs and defendant nos. 1 and 2, namely Vithalbharati Jethabharati has executed a will and bequeathed all his properties only in favour of defendant no. 2/2, all other legal heirs of deceased Vithalbharati Jethabharati are not entitled to any shares in the suit property and that in all previous litigations when present plaintiffs have not objected about the will in favour of him, now plaintiffs have no reason to Page 3 of 16 C/AO/89/2013 JUDGMENT claim their share and interim injunction as prayed for.
7 Whereas defendant nos. 3 to 7 have simply contended that since they are bonafide purchasers with the value and since now they have owned the land against consideration and through registered sale-deeds in their favour, the plaintiffs are not entitled to interim relief, as prayed for.
8 I have perused the record and all relevant documents produced with the memo of appeal and considered rival submissions of all parties.
9 At the outset, it cannot be ignored as well settled by the Hon'ble Apex Court in several cases that while dealing with the appeal against the interim orders, the appellate Court has not to conduct mini trial of the litigation at such appellate stage when both the parties have yet to adduce their evidence for determination of issue, by the trial Court, so as to resolve the real disputes between the parties. This is obvious because discussion and determination of all evidence in detail at such appeal against interim order would certainly prejudice the trial.
Therefore, I do not wish to enter into discussion Page 4 of 16 C/AO/89/2013 JUDGMENT of all minute details before coming to the conclusion and decision in this appeal. However, one basic fact cannot be ignored, even at the cost of prejudice to either side at this stage, which reflects from the will under reference alleged to have been executed by Vithalbharati Jethabharati and registered on 25/4/1989. Though it is a registered sale-deed before couple of decades, it lacks confidence on one basic disclosure when it is stated in such will that deceased Vithalbharati Jethabharati does not have any legal heir except defendant no. 2/2, namely Jigneshbharati, who was minor at the relevant time. To substantiate such conclusion, one has to examine the pedigree of deceased Vithalbharati Jethabharati, which is properly disclosed in para. 1 of the plaint as well as application for interim relief. Perusal of such pedigree makes it clear that irrespective of different mothers, in- all there were four daughters and two sons of deceased Vithalbharati Jethabharati and even for the sake of argument, if we consider the children from last wife alone, even then the statement that defendant no. 2/2 Jigneshbharati is the only legal heir is not correct since Arvindbharati Vithalbharati has two sisters, namely Gitaben and Manjulaben, who are present plaintiff nos. 2 and 3. The pedigree also confirms that deceased Vithalbharati has in-all three wives and probably Page 5 of 16 C/AO/89/2013 JUDGMENT because of death of first wife, he might have remarried, but in that case, the children from first wife cannot be ignored while considering succession. Deceased Vithalbharati Jethabharati has three children from first wife, namely Rukhiben, Vimlaben and Chimanbhai. Legal heir of Chimanbhai is defendant no. 1, whereas legal heir of Vimlaben is plaintiff no. 1. Eldest daughter Rukhiben died without having children and hence now not in picture.
10 Therefore, prima-facie when all previous litigations are based upon such will, according to me, it does not give confidence to the judicial process to confirm any such order which is beneficial to defendant no. 2/2 Jignesh Arvindbharati or other parties, who are having their rights based upon such rights alleged to be acquired by defendant no. 2/2. It is clear and certain that not to bequeath any property in favour of one or more legal heirs is a different issue than to disclose in a will that I do not have any legal heir except the person in whose favour properties are bequeathed. It is also clear that though people do not consider the daughter as a legal heir for some or other reasons, in the present case, it is certain that in addition to Arvindbharati, there was one another son of deceased Vithalbharati Page 6 of 16 C/AO/89/2013 JUDGMENT Jethabharati, namely Chimanbhai and, therefore, by all means, if deceased Vithalbharati Jethabharati states that he does not have any other legal heir except defendant no. 2/2, then it is nothing but an attempt by someone to get disadvantage of the position of the testator at the relevant time to grab the properties and to avoid other legal heirs and co-sharers of the properties in question.
11 Considering the above facts, at present nature and details of properties are not material. However, its details are well described in the pleadings and, therefore, same are not reproduced hereinabove. However, it is made clear that all such orders are relating to the suit properties as described in the suit.
12 As against that, the case of the defendants is to the effect that there were previous suits and revenue litigations wherein rights are determined and thereafter, defendant nos. 3 to 7 have purchased the property against consideration and, therefore, present suit is not tenable on several counts including limitation, etc. 13 However, it cannot be ignored that on 3/2/1992 the revenue authorities have endorsed Page 7 of 16 C/AO/89/2013 JUDGMENT one entry no. 924 wherein though it is endorsed in the last column that there is dispute amongst legal heirs, it is certain that name of all legal heirs were already disclosed in the revenue record in the year 1992 and they are in all 8 heirs of deceased Vithalbharati Jethabharati. Therefore, if anything is done by anyone of them and if defendant nos. 3 to 7 have purchased property from any one of them, without verifying revenue record, then they have to thank themselves rather than alleging against the plaintiffs that considering previous litigation and consideration paid by them, now the plaintiffs do not have any case.
14 The defendants are also relying upon some statements alleged to be made by some of the legal heirs of the deceased Vithalbharati Jethabharati before the revenue authorities on or about 23/7/1992. Unfortunately, such statements are annulled the contents of the will and confirms the averments made hereinabove regarding will, inasmuch as if there was no other legal heir than defendant no. 2/2, then there was no necessity to record statements of any such litigant, namely Gitaben Arvindbharati, Vimlaben and Manjulaben Manhargiri. Even in one of such statements, the relationship between them was not properly disclosed. It is difficult to believe Page 8 of 16 C/AO/89/2013 JUDGMENT that village ladies about 50 years of age would fail to disclose proper relationship amongst them and that defendant no. 2/2, who is claiming entire property based upon such statement and will.
15 It is also settled legal position that revenue entries and proceedings do not confirm the final right and title of the parties, but it only keeps record of details of occupant. However, it cannot be ignored that even during such revenue proceedings, at least in the order dated 31/7/1992 Additional Mamlatdar, Vadodara [Rural] has declared that there are in-all five successors of the deceased Vithalbharati Jethabharati, even after considering the statements of three sisters referred hereinabove, and it includes defendant no. 1/1 and her legal heirs. The ultimate result of such decision is again debarring rights of daughter. Though all such entries are favouring some properties in the names of some of the legal heirs of deceased Vithalbharati Jethabharati, as aforesaid, the basis of all such entries are not proper, when initially it was considered that Vithalbharati Jethabharati has only one legal heir, namely defendant no. 2/2, though it is certain that all the legal heirs of deceased Vithalbharati Jethabharati have got equal shares in the suit Page 9 of 16 C/AO/89/2013 JUDGMENT property.
16 By order dated 3/1/2005 - 22/4/2005 by Mamlatdar, Vadodara [Rural] though objections of some of the legal heirs of deceased Vithalbharati Jethabharati were not considered, while approving entry no. 1409 dated 2/5/2003, the pedigree and successorship of all successors of deceased Vithalbharati Jethabharati was disclosed.
17 Therefore, if defendant nos. 3 to 7 have purchased the suit property even after public notice dated 15/10/2007, it cannot be said that they are not aware about the internal disputes between co-owners or coparceners and their rights over the suit properties.
18 However, perusal of impugned judgment and order makes it clear that the trial Court has failed to consider all above aspects and simply relied upon the will and history about previous litigation. However, when trial Court has categorically observed that in previous Civil Suit No. 202/2000 when interim order was refused in favour of defendant no. 2/1 even by the High Court, defendant no. 2/1 does not have better title over the suit property and, therefore, only because interim relief was not granted in favour of defendant no. 2/1, it cannot be said that the Page 10 of 16 C/AO/89/2013 JUDGMENT same cannot be granted in favour of the present plaintiffs also since both are on different sides of the dispute. It is also pertinent to note that though the trial Court has observed that in a suit initially filed by the defendant nos. 5 to 8 being Civil Suit No. 919/1999 against the defendant no. 2, the injunction was not granted in favour of defendant nos. 5 to 8 and, therefore, the plaintiffs are not entitled to interim relief. However, this is a misconception by the trial Court inasmuch as if in a suit by purchaser against seller when interim relief is refused, then there is nothing to say that co- sharer of such seller does not have any right and they cannot get interim relief in their favour against all such parties. In any case, as observed hereinabove, at such interim stage, it would not be advisable to hold mini trial of the entire dispute between the parties which requires scrutiny and consideration of all factual and legal aspects as well as history of previous litigation. However, considering the fact that there was basic lacuna in disclosing the legal heirs of deceased Vithalbharati Jethabharati and thereafter, heirship of all legal heirs are ultimately admitted in the revenue proceedings, now there is a question of evidence that why and how any of them relinquished themselves or such relinquishment was legal and proper or not.
Page 11 of 16C/AO/89/2013 JUDGMENT 19 Reference to the following citation by the appellant is material : I AIR 2005 SUPREME COURT 104 "Maharwal Khewaji
Trust (Regd.), Faridkot v. Baldev Dass"
= 2004 AIR SCW 6333 Civil P.C. (5 of 1908) , O.43 , R.1 , O.39 , R.1 - APPELLATE COURT - INJUNCTION - Powers of appellate Court - Allowing changes of status quo of property during pendency of litigation - Not justified except in exceptional circumstances - Ground that legal proceedings are likely to take long time - Is no exceptional circumstance to allow changes by imposing conditions.
Unless and until 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, and therefore, the respondent should be permitted to put the scheduled property to better use. In the facts and circumstances of the case, the lower appellate Court and the High Court were not 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 Page 12 of 16 C/AO/89/2013 JUDGMENT 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, Courts below erred in making the impugned orders. The said orders are liable to be set aside.
II In AIR 2009 SC (Supp) 2364 "Zenit Mataplast P. Ltd. v. State of Maharashtra", the Hon'ble Apex Court observed as under :
'23 Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)
24. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each Page 13 of 16 C/AO/89/2013 JUDGMENT case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas &
Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721.
25. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).
26. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :
[i] Extent of damages being an adequate remedy;
(ii) protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;
(iii) the court while dealing with the Page 14 of 16 C/AO/89/2013 JUDGMENT matter ought not to ignore the factum of strength of one party's case being stronger than the others;
(iv) no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;
(v) the issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;
(vi) balance of convenience or
inconvenience ought to be considered as
an important requirement even if there is
a serious question or prima facie case in
support of the grant;
(vii)whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise."
20 Therefore, till such issues are decided, there is no option but to protect the suit properties from further alienation and material change in its condition. It is also obvious that at present order of status-quo is in force since the year 2007. It is clear that on day one, when the suit was filed on 31/12/2007, order of status-quo was granted and it is continued till date. It is also obvious that all land being agricultural land, in absence of specific pleadings and proof regarding its development, when prima-facie case is in favour of the Page 15 of 16 C/AO/89/2013 JUDGMENT plaintiffs, balance of convenience and irreparable loss would certainly tilt in favour of the plaintiffs. Therefore, the appeal is allowed. Thereby the impugned order is quashed and set aside. However with direction that the suit shall be decided at the earliest, preferably on or before 31/12/2014.
Civil Application stands disposed of accordingly.
(S.G.SHAH, J.) * Pansala.
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