Gujarat High Court
Pravinbhai vs Parvatiben on 12 September, 2008
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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AO/1820/2008 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 18 of 2008
With
CIVIL
APPLICATION No. 749 of 2008
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PRAVINBHAI
BHAGVANBHAI & 1 - Appellant(s)
Versus
PARVATIBEN
HIRABHAI KESHAVBHAI & 18 - Respondent(s)
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Appearance :
MR
SI NANAVATI, SR. ADVOCATE for MR LR PATHAN for
Appellant(s) : 1 - 2.
MR JIGAR P RAVAL for Respondent(s) : 1,
RULE
SERVED for Respondent(s) : 2, 5,
UNSERVED-EXPIRED (R) for
Respondent(s) : 3,
SERVED BY AFFIX.-(R) for Respondent(s) : 4,6 -
11.
MR MA SAPA for Respondent(s) : 12 - 16.
MR KG VAKHARIA, SR.
ADVOCATE for MR MB PARIKH for Respondent(s) : 17,
NOTICE SERVED BY
DS for Respondent(s) : 18 -
19.
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 12/09/2008
ORAL ORDER
1. Heard the learned advocates appearing for the parties for final disposal of the appeal.
2. Appellants are the original plaintiffs who have instituted Special Civil Suit No. 145 of 2002 before the learned Senior Civil Judge, Surat. The suit is for declaration and permanent injunction against the defendants with respect to land admeasuring 1 acre and 10 gunthas bearing Survey No. 57/2 of Village Dabholi, Taluka Choryasi, District Surat. The plaintiffs claim to have purchased the suit land through a registered sale deed dated 06.07.2001 from one Parvatiben the original land owner - defendant No. 17 in the pending suit.
It appears that there are number of sale transactions allegedly created with respect to suit land and this has given rise to the present litigation.
In the above-mentioned suit, the plaintiffs also filed application Exh. 5 and sought interim injunction restraining the respondents from interfering with the use and enjoyment of the suit land by the plaintiffs and further restraining the said defendants from dealing with the land in any manner by selling, transferring, till final disposal of the suit proceedings.
After initially granting ex-parte injunction, the learned 5th Additional Senior Civil Judge and JMFC, Surat by the impugned order dated 10.01.2008 dismissed Exh.5 application of the appellants and vacated ad-interim injunction granted earlier. It is this order which the appellants have challenged in this appeal.
3. Learned Senior Advocate Shri S.I. Nanavati for the appellants and learned Senior Advocate Mr K.G.Vakharia for the concerned respondent have taken me through various documents on record and made detailed factual as well as legal submissions.
4. On behalf of the appellants, it was pointed out that the original land owner - Parvatiben had sold the land to one Nagindasbhai by a registered sale deed dated 09.03.1990. Nagindasbhai in turn executed a Banakhat and also granted irrevocable power of attorney in the year 1997. Eventually, the land was sold to the appellants by a registered sale deed dated 18.09.2001. Learned Senior Advocate for the appellants, therefore, submitted that the appellants have become owners of the suit land and have also been put in possession thereof. They are enjoying possession of the suit land since many years. Such possession was initially protected by the Trial Court by granting ex-parte interim injunction. Many years thereafter, however, by the impugned order, such injunction was vacated.
It was contended that the concerned defendants claim to have purchased this very land through a registered sale deed dated 06.07.2001 executed by Parvatiben - defendant No. 17 who had no right, title or interest left in the suit property after she once sold the same to Nagindasbhai.
It was contended that though the Trial Court heavily relied on the allegation that Nagindasbhai was not an agriculturist and therefore, could not have purchased the land in question which was agricultural land, in the sale deed dated 09.03.1990 itself entered into between Parvatiben and Nagindasbhai, it is clearly mentioned that the purchaser - Nagindasbhai is an agriculturist. He further contended that in any case, sale in favour of non-agriculturist even if opposed to provisions of Section 363 of Bombay Tenancy & Agricultural Lands Act, 1948 would not be a void transaction, but only an invalid transaction and since no one had challenged such sale transaction, it cannot be treated as non-est. In this regard, reliance was placed on a decision of learned Single Judge of this Court in the case of Mavjibhai Dharsibhai & Ors. Vs. State of Gujarat & Ors., reported in 1994(2) GLR Page-1168 and another decision in the case of Bhagwanbhai Karamanbhai Bharvad Vs. Arogyanagar Co-Op. Housing Society Limited & Ors., reported in 2004(1) GLR Page 506.
It was further contended that in the sale deed executed in favour of the appellants, it is clearly recorded that possession of the suit property is being handed over to the appellants. Additionally, my attention was drawn to various documents on record to urge that the appellants were enjoying uninterrupted possession of the suit land since execution of sale in their favour.
It was contended that at one stage, Parvatiben had filed a Civil Suit questioning the sale deed and the power of attorney of Balvantbhai, she had later on withdrawn the proceedings by filing a purshis.
My attention was also drawn to the Commissioner's Report to urge that in the report also, possession of the appellants was reflected.
5. On the other hand, learned Senior Advocate Mr Vakharia for the concerned respondent submitted that they had purchased the land directly from Parvatiben through a registered sale deed. That Nagindasbhai was not an agriculturist and sale in his favour was, therefore, invalid. In any case, while the sale transaction took place, the Urban Land (Ceiling & Regulation) Act, 1976 was in operation and in view of the provisions contained therein, particularly, Sections 5 and 27, any such transaction would be void.
He further submitted that name of Nagindasbhai was not entered in the revenue records and there was other evidence available to show that the plaintiffs were not in possession of the suit land. He drew my attention to the documents signed by Nagindasbhai subsequent to first sale in his favour, wherein he was described as person involved in trading and not as an agriculturist.
6. Having, thus, heard the learned counsel appearing for the parties, the question that is required to be decided by this Court at this stage is whether interim injunction should be granted in favour of original defendants.
7. Firstly, one may notice that though there is some doubt about the legality of the sale deed executed by Parvatiben in favour of Nagindasbhai on 09.03.1990, so far no one has challenged such sale deed. All subsequent transactions leading upto the final sale in favour of the present appellants, therefore, at the stage when the Court is considering the question of interim injunction, cannot be knocked down only on the ground that on account of the provisions contained in the Bombay Tenancy and Agricultural Land and the Urban Land Ceiling Act, there is some cloud over the legality of the sale deed dated 09.03.1990.
8. The question whether Nagindasbhai purchased the land from Parvatiben by a registered sale deed dated 09.03.1990 was non-est and void-ab-initio requiring no such formal declaration can be concluded only after conducting the trial. At this stage it would not be possible to hold and declare that the ultimate sale in favour of the present appellants which was pursuant to a series of transactions subsequent to first sale of the land by Parvatiben in favour of Nagindasbhai on 09.03.1990 is void on this score.
9. The question, therefore, needs to be answered is whether there was prima facie evidence to hold that the plaintiffs were in actual possession of the suit land. I find that the learned Judge heavily relied on the invalidity of the sale deed between Parvatiben and Nagindasbhai to observe that the plaintiffs are not in lawful possession of the suit land. Learned Judge appears to be under the impression that though the appellants were in possession of the land, such possession cannot be termed as lawful possession . In my view, if there was other evidence establishing longstanding possession of the suit land of the plaintiffs to which they were put in through a registered sale deed in their favour, such possession could not have been described as illegal possession. As already noted, even if there is some cloud over the legality of sale in favour of Nagindasbhai, at this point of time, if it is found that the plaintiffs were put in possession of the suit land pursuant to a registered sale deed by a person who was prima facie authorised to do so, they cannot be treated as rank trespassers. The central question that calls for consideration is whether there was sufficient material to prima facie believe that the plaintiffs were actually enjoying the suit property through physical possession.
10. Here, I find that quite apart from the narration made in the sale transaction itself which is bound to be there in every such transaction, there was voluminous evidence to prima facie found that the appellants were enjoying possession of the suit land since a considerable period of time.
11. It is true that the revenue record did not include the name of the appellants and it is also true that entries in the revenue record ordinarily would give presumption regarding possession. However, it is well settled that such presumption is rebuttable and if there is other evidence suggesting to the contrary, it is open to the Court to appreciate such material and come to a different conclusion.
12. In the present case, the appellants have produced following documents to demonstrate their possession :-
(i) At Page 58/G of the Appeal from Order, the Court Commissioner's Report is produced in which the Court Commissioner records presence of boards indicating notice that the land is in possession of the appellants found at the site.
(ii) At Pages 47 to 49 of the Appeal from Order, the appellants have produced bills from Surat Municipal Corporation regarding Corporation taxes. Such bills show the name of appellant No.1. The taxes appear to have been paid by the said appellant. These bills pertain to period from the year 2001 02 onwards.
(iii) At Pages 59 and 60 of the Appeal from Order, bills from Surat Electricity Company have been produced pertaining to the period between 2001 02 wherein also similar possession is emerging.
(iv) Similarly, at Page 254 of the paper book separately presented, the appellants have produced list of documents presented before the Trial Court.
Along with the list, there are various documents such as bills, receipts, official correspondence prima facie showing that the appellants were in physical possession of the suit land. These bills include various tax bills of Municipal Corporation and electricity bills of Surat Electricity Company for the relevant period.
(v) At Page 269 along with the paper book, the appellants have produced yet another list along with which, some additional documents were produced before the Trial Court. One of the document is of withdrawal purshis dated 23.04.2007 presented by Parvatiben seeking withdrawal of her Special Civil Suit No. 358 of 2001 challenging the power of attorney given in favour of Dahyabhai and the sale deed made in favour of the appellants herein on the strength of such power of attorney.
13. In nut shell, I find that there was sufficient evidence before the Trial Court to hold that prima facie, the appellants were in actual of the suit land. The longstanding possession should not have been disturbed.
14. In the result, the Appeal from Order is allowed. The impugned order dated 10.01.2008 passed by learned 5th Additional Senior Civil Judge, Surat is quashed and set aside. Status-quo order granted ex-parte by the Trial Court is revived and shall continue till final disposal of the suit. It is further provided that even the appellants will maintain status-quo with respect to title, possession and position of the land till disposal of the suit. It would be open for either side to pray for early disposal of the suit and if such an application is made, the Court shall endeavour to dispose of the suit early depending on the workload.
It is clarified that all the above observations are made for dealing with interim stage of the suit and will not come in the way of either side in pursuing the suit.
15. With these observations, the appeal is disposed of. In view of disposal of Appeal from Order, Civil Application No.749 of 2008 does not survive and is disposed of accordingly.
(Akil Kureshi, J.) mrpandya* Top