Gujarat High Court
Indrasinh Shivaji Laxmanji Rana L.H. Of ... vs Gaurangbhai Santram on 6 August, 2018
Author: Akil Kureshi
Bench: Akil Kureshi, B.N. Karia
C/FA/2132/2018 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 1 of 2018
IN R/FIRST APPEAL NO. 2132 of 2018
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INDRASINH SHIVAJI LAXMANJI RANA L.H. OF LATE LAXMANJI AMRUTJI RANA Versus GAURANGBHAI SANTRAM ========================================================== Appearance:
MR.HEMANG H PARIKH for the PETITIONER(s) No. MS TRUSHA K PATEL for the RESPONDENT(s) No. RULE NOT RECD BACK for the RESPONDENT(s) No. RULE UNSERVED for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE B.N. KARIA Date : 06/08/2018 IA ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. On this Civil Application for stay on 02.07.2018, we had passed following order:
"1. RULE returnable on 16.07.2018. We have heard learned counsel for the parties at considerable length for admission of the First Appeal which we had admitted by a separate order passed today as also for interim injunction pending the appeal.
2. Prima facie it appears that:
(i) The present appellants are the original plaintiffs, who had filed the Civil Suit challenging the sale deed of their lands (hereinafter to be referred to as 'the suit lands"). The plaintiffs have admitted execution of two power of attorneys; one special and another general power of attorney with respect to Page 1 of 5 Downloaded on : Fri Feb 12 05:58:50 IST 2021 C/FA/2132/2018 IA ORDER such lands. The plaintiffs have also admitted having received a total sale consideration of Rs. 19.86 lacs at the time of execution of such documents out of the aggregate sale consideration of Rs. 51 lacs as per the agreement to sale which also the plaintiffs have admitted. The possession receipt was also admittedly signed by the plaintiffs.
(ii) The plaintiffs however contended that the remaining sale consideration was neither offered nor paid and the defendants fraudulently executed the sale deed. They also argued before the Court below that one of the joint owners-Shivji expired before the sale deed was executed with the aid of the power of attorney . They contended that after the death of the executant, the authority of the attorney would come to an end. At least insofar as he is concerned, the sale deed is null.
(iii) The defendants had filed a counter suit and taken a stand that in addition to Rs. 19.86 lacs, a sum of Rs. 25 lacs was paid to the plaintiffs for which, receipt was passed by plaintiff No. 7. They contended that last installment of Rs. 6.14 lacs and odd remained to be paid for which, a cheque was issued and tendered to the plaintiffs who refused to accept the same.
They contended that the plaintiffs continued to occupy small houses situated on the suit lands and refused to vacate the same. In the counter suit therefore, they prayed that the original plaintiffs be directed to vacate the houses.
(iv) The Trial Court dismissed the suit of the present appellants and also held that the possession of the houses was illegal and directed them to vacate the same.
3. In view of several important factors which are either virtually admitted or undisputable, we do not propose to grant complete stay in favour of the appellants. Particularly, when the execution of the power of attorneys and agreement to sale as well as the possession receipt coupled with acceptance of sizeable sale consideration of Rs. 19.86 lacs is either Page 2 of 5 Downloaded on : Fri Feb 12 05:58:50 IST 2021 C/FA/2132/2018 IA ORDER undisputed or undisputable, it would not be proper, to deny the defendants the fruit of the judgement of the Trial Court all together. However, it is an admitted position that the plaintiffs continued to occupy the houses which are situated on the suit lands. It would not be appropriate to dispossess them pending the First Appeal. Subject to the defendants depositing the remaining sale consideration with a reasonable interest before this Court and also setting apart the lands sufficient to allow the plaintiff to occupy and enjoy during the pendnecy of the First Appeal, their houses situated on the suit land with a right to access the same freely, we may consider allowing the original defendants to enjoy their title and occupation of the remaining portion of the land. Before we pass, the final order in this respect, we would like to ascertain the precise position of the houses of the plaintiffs in the final plot in the restructured final plot. The respondent shall produce a sketch of the final plot in question particularly, the position of the houses of the plaintiffs thereon before the returnable date."
2. Pursuant to such order, the respondents filed affidavits dated 10.07.2018 in which, following averments have been made:
"2. This Hon'ble High Court had directed the opponents to produce a sketch of the Final Plot in question, particularly containing the position of the houses of the plaintiffs thereon. It is submitted that the suit was filed by the applicants herein, in respect of the lands bearing Survey No. 34 and 39 of village : Sargasan, Taluka and District: Gandhinagar. In lieu of those two survey numbers, a common Final Plot No. 33 was alotted in the Town Planning Scheme. The disputed houses are the subject matter of the suit filed by the opponents herein. The said houses were forming part of Old Survey No. 34. The same are at present located in one corner of FP 33. Annexed hereto and marked Annexure 1 is a copy of the map.
3. It may be noted that the houses about to 12 Mtr wide service road, through which there is a direct access to Page 3 of 5 Downloaded on : Fri Feb 12 05:58:50 IST 2021 C/FA/2132/2018 IA ORDER S.G.Highway. What is stated here in above is true and correct to the best of my information."
3. The applicants have refuted such averments through the affidavit dated 30.07.2018. They have also produced aerial photographs of the site to establish their assertions.
4. In furtherance of the order dated 02.07.2018, for the reasons already recorded therein, we permit the respondents to enjoy the title and possession of the properties in question subject to following riders:
(i) The applicants shall not be disturbed or dispossessed from the existing residential units situated on any part of the land;
(ii) Any development of the land would be in addition to complying the above requirement shall also be after due permissions from the authorities concerned and assuring that the ingress and egress of the applicants to such residential units is not cut off. If there is already existing access it will not be necessary for the respondent to provide additional access.
In other words, full access of the said residential units will be maintained.
(iii) The applicants shall also not expand their occupation beyond the residential units and margin spaces appurtenant thereto.
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(iv) The respondents shall deposit before this Court a sum of Rs. 6.14 lacs with simple interest @ 9% per annum from 16.03.2007 till actual payment. Counsel for the applicants stated that the applicants do not wish to withdraw such amount. Such amount may therefore be invested by the Registry in any nationalized bank in cumulative fixed deposit.
(v) Counsel for the respondents submitted that to allow the applicants to continue to occupy the residential premises means profit may be awarded. At this stage, we refuse to grant any such order by way of interim measure. Such issue shall be considered while finally disposing of the First Appeal.
(vi) Learned counsel Ms. Patel for the respondents herein submitted that there is a typographical error in the operative portion of the impugned judgement. When an attempt was made to have such error corrected, the Trial Court found that in view of the pendency of the First Appeal, it would be appropriate for the Court to entertain such a contention. It is clarified that pendency of this appeal would not preclude the Trial Court from examining any such request that may come from the present respondents. If a fresh application for such purpose is made, it may be decided after hearing both sides.
Civil Application is disposed of.
(AKIL KURESHI, J) (B.N. KARIA, J) JYOTI V. JANI Page 5 of 5 Downloaded on : Fri Feb 12 05:58:50 IST 2021