Gujarat High Court
Bhagwandas Ishwardas Patel vs Gayatrikrupa Sarkari on 27 June, 2013
Author: S.H.Vora
Bench: S.H.Vora
BHAGWANDAS ISHWARDAS PATEL (DECD) THROUGH SHANTABEN WD/OV/SGAYATRIKRUPA SARKARI KARMACHARI COOPERATIVE HOUSING SOC.LTD C/AO/312/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO.
312 of 2012 With CIVIL APPLICATION NO.
9182 of 2012 In APPEAL FROM ORDER NO.
312 of 2012 With CIVIL APPLICATION NO.
5846 of 2013 In APPEAL FROM ORDER NO.
312 of 2012 With CIVIL APPLICATION (STAMP NUMBER) NO. 6085 of 2013 In APPEAL FROM ORDER NO.
312 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA ================================================================ 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 ?
================================================================ BHAGWANDAS ISHWARDAS PATEL (DECD) THROUGH SHANTABEN WD/O & 2....Appellant(s) Versus GAYATRIKRUPA SARKARI KARMACHARI COOPERATIVE HOUSING SOC.LTD & 13....Respondent(s) ================================================================ Appearance:
MR ND NANAVATI FOR MR AJAY S JAGIRDAR, ADVOCATE for the Appellant(s) No. 1 - 3 MR MIHIR JOSHI AND MR DC DAVE FOR MR ANSHIN H DESAI, ADVOCATE for the Respondent(s) No. 1 , 4 MR JIGAR M PATEL, ADVOCATE for the Respondent(s) No. 3 , 5 MR ZALAK B PIPALIA, ADVOCATE for the Respondent(s) No. 2 MS ARCHANA R ACHARYA, ADVOCATE for the Respondent(s) No. 10 NOTICE SERVED BY DS for the Respondent(s) No. 6.1 - 6.3 , 7 - 9 , 11.1 - 11.4 , 12.1 - 12.4 , 13.1 - 13.3 , 14.1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.H.VORA Date : 27/06/2013 CAV JUDGEMNT
1. Challenge in this Appeal From Order preferred under Order 43, Rule 1 read with Section 104 of the Code of Civil Procedure, is the order below Exhibit 5 passed in Special Civil Suit No.25 of 2007, by the learned 12th Additional Civil Judge, Ahmedbad (Rural). Vide said order dated 16.5.2012, learned Trial Judge by common order dismissed application Exhibit 5 preferred under the provisions of Order 39, Rule 1 and 2 and application Exhibit 26 preferred by defendants under Order 7, Rule 11(b) of the Code of Civil Procedure. The appellants challenge the order below Exhibit 5 preferred by the appellants, wherein the appellants (original plaintiffs) prayed for temporary injunction to restrain the respondents Nos.1 to 5 (original defendant Nos.1 to 5) from transferring, assigning or erecting or executing any deed or creating any charge, lien over the land bearing Survey No. 883 admeasuring 3 Acre 32 Gunthas situated in District Sub-District Ahmedabad, Taluka City Mouje Vejlapur. For brevity, the appellants would be referred to as the plaintiffs and the respondent Nos.1 to 5 would be referred to as the contesting defendants , whereas the said land would be referred to as the suit land .
2. Brief facts giving rise to the present Appeal From Order can thus be stated as under :
According to the case of the plaintiffs, one late Punmaji Hiraji Marwadi was the original owner of the suit land. Said Punmaji Hiraji Marwadi entered into agreement to sell on 1.11.1966 with one Dhulaji Varvaji (original defendant No.14 in the suit). Thereafter, said defendant No.14 executed the sale agreement with one Bhagvandas Ishwardas Patel for the suit land in the year 1972. Said Bhagvandas Ishwardas Patel filed Regular Civil Suit No. 31 of 1972 against defendant No.14 Dhulaji Varvaji and Punmaji Marwadi. The said suit was compromised between the parties and accordingly, the decree was drawn in favour of Bhagvandas Ishwardas Patel in respect to the suit land. It is specific case of the plaintiffs that they are the heirs of said Bhagvandas Ishwardas Patel and as permission from the competent Authority could not be obtained from the competent Authority and that being one of the condition of said Banakhat dated 1.11.1966 and as it was not fulfilled by Punmaji Hiraji Marwadi and defendant No.14 Dhulaji Varvaji, the sale deed was not executed. It is the case of the plaintiffs that after passing of the decree, the said Punmaji Hiraji Marwadi and Bhagvandas Ishwardas Patel entered into separate agreement to sell and on 13.10.1972, said Punmaji Marwadi handed over the possession of the suit land to Bhagvandas Ishwardas Patel by way notarized agreement. Said Bhagvandas Ishwardas Patel died on 29.9.1973 and also said Punmaji Marwadi died on 4.3.1973.
2.2 It is specific case of the plaintiffs that they were in the possession of the suit land. Thereafter, on 7.11.1979, the heirs of Punmaji Marwadi, who were respondent Nos.6 to 13 (defendant Nos.6 to 13) entered into agreement confirming the said Banakhat dated 13.10.1972 as well as possession and all aspects of the agreement to sell were confirmed by the said respondent Nos.6 to 13. On 4.4.1991, public notice was published by H. Desai & Company for title clearance with respect to the suit land and, therefore, one of the plaintiffs objected and replied the said public notice through advocate on 9.4.1991. It is the case of the plaintiffs that from time to time, the plaintiffs requested to the heirs of Punmaji Hiraji Marwadi for clearance of necessary permission from the Government Authorities and thus, the plaintiffs were awaiting for the same.
2.3 It is further case of the plaintiffs that the respondent Nos.6 to 13 (defendant Nos.6 to 13), who are legal heirs of late Punmaji Hiraji Marwadi, entered into sale deed on 21.7.1999 with defendant No.1 Gaytri Krupa Sarkari Karmachari Cooperative Housing Society. As per the say of the plaintiffs, the said sale deed was executed on the basis of agreement to sell dated 16.9.1992. It is the case of the plaintiffs that though the respondent No.1 was aware of the fact that the plaintiffs are in the possession of the suit land and further aware of the fact that defendant Nos.6 to 14 entered into Banakhat with the present plaintiffs, the defendant No.1 purchased the suit land. As per the case of the plaintiffs, the respondent Nos.6 to 13 never informed the plaintiffs about the sale agreement and as per the agreement to sell dated 16.9.1992, they did not inform about the execution of the sale deed with defendant No.1. On 17.6.2004, M/s.
Jani & Company issued public notice in Gujarat Samachar for title clearance certificate in respect to the suit land and the plaintiffs through advocate raised their objections to the above public notice on 23.6.2004, stating that the plaintiffs are in the possession of the suit land and the plaintiffs have already paid most the sale consideration to the original land owners.
2.4 It is specific case of the plaintiffs that on 22.9.2004, the contesting defendants took forcibly the possession of suit land from the plaintiffs and therefore, the plaintiffs were constrained to file criminal complaint before the local police and as the police refused to register the said complaint, the plaintiffs filed criminal complaint before the Third Judicial Magistrate First Class, Ahmedabad (Rural) under the provisions of Indian Penal Code. Similarly, the plaintiffs also filed Special Civil Suit No.314 of 2004 before the Civil Judge (Senior Division), Ahmedabad (Rural) against the contesting defendants and other heirs of original land owners under Section 6 of the Specific Relief Act for the possession of the suit land and also to restrain the contesting the defendants from making any construction or to sell or to transfer or alienate the suit land. In the said suit, the plaintiffs moved an injunction application Exhibit 5, which was dismissed on 29.4.2006. Against the said order, the plaintiffs preferred Appeal From Order No.153 of 2006, which was ultimately withdrawn on 5.9.2006. Thereafter, on 1.2.2007, the plaintiffs preferred Special Civil Suit No.25 of 2007 before the learned Civil Judge (Senior Division), Ahmedabad (Rural), inter alia prayed for declaratory decree to the effect that the plaintiffs have preferential right to purchase the suit land as they are in the possession of suit land by virtue of decree passed in the suit No.31 of 1972. It was further prayed by way of mandatory decree to restore the possession of the suit land and further since the plaintiffs are in the settled possession of the suit land, various permissions/orders obtained by the contesting defendants be declared as illegal and consequently, the sale deed dated 21.7.1999 be cancelled and further contesting defendants be prevented by way of perpetual injunction from erecting any construction, sale or transfer or assign any right, title or interest in the suit land or creating charge, lien over the suit land.
2.5 Present suit was resisted by the contesting defendants by filing written reply before the Trial Court. It is contended by the contesting defendants that the plaintiffs do not have prima facie case nor do the plaintiffs have balance of convenience in their favour nor it can be said that there is irreparable loss or irreversible loss or damage likely to be caused to the plaintiffs, if interim relief is not granted because the injunction application filed in the suit preferred under Section 6 of the Specific Relief Act was rejected on 29.4.2006. So after having lost in first round of litigation, the present injunction application, which is subject matter of the present Appeal is nothing, but gross abuse of process of law because the subject matter and parties in Regular Civil Suit No.314 of 2004 and suit in question are between the same parties. Not only that, but on plain reading of the plaint of both the suits, it contains identical facts, so it is contended by the contesting defendants that the plaintiffs failed to get injunction in their favour in first round of litigation, impugned order dismissing injunction application deserves to be confirmed in the interest of justice as the facts are same. It is further contended that the suit itself is not maintainable in the eye of law as the same is instituted against the Cooperative Society i.e. contesting defendant Nos.1 to 4 and, therefore, the suit is barred by non issuance of notice under Section 167 of the Gujarat Cooperative Societies Act. It is further contended that though so called decree on the basis of Exhibit 31 compromise purshis came to be passed in Civil Suit No.31 of 1972, it appears from the record of the case that the said decree is paper decree because no Execution Petition was filed within 12 years from the date of its passing i.e. 13.10.1972. Admittedly, the Execution Petition No.1 of 2007 came to be filed only in the year 2007 seeking execution of compromise decree dated 13.10.1972 and therefore, as the Execution Petition is not filed within a period of 12 years from the date of decree, so the plaintiffs have no case. It is further contended that after gross delay of 35 years, the plaintiffs approached the Court by way of instituting the suit in the year 2004 and thereafter failing in the injunction application, present suit is filed, which is nothing but an abuse of process of law as present litigation is filed for the same cause of action between the same parties, for the same property and after losing injunction application, another round of litigations has been commenced. It is also contended by the contesting defendants that the plaintiffs questioned by way of registered sale deed dated 21.7.1999 where all the legal heirs of Punmaji Marwadi (defendant Nos.6 to 13) sold the suit land to the contesting defendants and very sale deed is subject to challenge after a period of 8 years and therefore, as per Article 56 of the Limitation Act, the suit is hopelessly time barred and therefore, the plaintiffs are not entitled for any sort of injunction. It is further contended that the possession of the suit land is with the contesting defendants from the date of registered sale deed i.e. 21.7.1999 and therefore, it is well settled position that the possession follows the title and such title of property shifted in favour of contesting defendants from 21.7.1999. It is further contended that the suit is hit by delay, laches and acquiescence, since the possession of the suit land was with the original owners i.e. the defendants Nos.6 to
13. Not only that in the revenue record, the possession of the sellers of the suit land has been shown and same was continued till the date of execution of the sale deed dated 21.7.1999. Lastly, it is urged that the contesting defendants have made huge construction in the year 2004 and prior to it, public notice for title clearance dated 4.4.1991 was published wherein, the possession was shown with one of the heir of original owner Varjuben though the plaintiff No.2 raised objection for issuing title clearance certificate by reply published on 9.4.1991, but the plaintiff No.2 did not raise any objection as to the possession of the suit land with the said original owners i.e. legal heirs of defendant Nos.6 to
13. Lastly, it is urged that necessary permission under Section 63 of the Bombay Agricultural and Tenancy Act has been granted by the Collector on 24.7.1999 and contesting defendants obtained development permission on 14.6.2004 and in pursuance thereof, the construction has been commenced and under that circumstance, no case is made out to grant equitable relief on the ground of delay and more particularly, so called decree invited by way of compromise deed in Regular Civil Suit No.31 of 1972 is time barred and non-executable and therefore, the plaintiffs have no right, title or interest in the suit land as the suit itself is non-maintainable at law.
3. On this broad fact, I have extensively heard the learned senior counsel Mr. N.D. Nanavati for learned advocate Mr. A.S. Jagirdar and learned senior counsel Mr. Mihir Joshi and learned senior counsel Mr. Dhaval Dave appearing for Mr. A.H. Desai and Mr. J.M. Patel and also Ms. Archana Acharya, learned advocate for respondent No.10 (one of the seller of the suit land of the contesting defendants supporting the plaintiffs). I have carefully examined the pleadings, various documents supplied by both the sides at the time of hearing of present Appeal From Order and I have carefully gone through the impugned order and relevant laws applicable to the facts of the case. After examining the issues involved the order dismissing the injunction application below Exhibit 5 deserves to be upheld for the reasons recorded by the learned Trial Judge and for the reasons recorded herein below.
4. Admittedly, the plaintiffs have filed suit for declaratory decree and for cancellation of sale deed dated 21.7.1999 executed by the defendant Nos.6 to 13 in favour of defendant No.1 in the year 2007 precisely on 1.2.2007. Accordingly to the Section 3 of the Transfer of Properties Act, explanation 2 and 3, a person is said to have notice of a fact when he actually knows that fact or when, but for willful abstention from an enquiry or search which he ought to have made or gross negligence he would have known it. The instrument which is challenged by the plaintiffs is registered sale document and it completely registered in a manner prescribed by the Indian Registration Act and therefore, it can be inferred that the plaintiffs have been noticed of the said transaction. Not only that though in the year 1991, one of the sellers of the suit land, stated in the public notice that she is in the possession of the suit land and while dealing with the said public notice, one of the plaintiffs did not object said aspect of possession of suit land nor denied correctness of the said factum of possession. So, because of the registration of the document in the year 1999 as well as possession of the suit land being with the original sellers would constitute notice under Section 3 of the Transfer of the Properties Act to the plaintiffs, still, however, the plaintiffs did not take any legal step to challenge the said sale deed within a period of 3 years from the date of execution of the sale deed as per the Article 59 so as to cancel or set aside the said instrument within 3 years. So on this count, the suit to that extent becomes non-maintainable and therefore, the plaintiffs are not entitled to any relief qua contesting defendants.
5. Now, coming to the submissions made by learned senior advocate Mr. Nanavati to the effect that as the condition No.5 of the decree was not performed by the original owners, the decree cannot be executed and therefore, the decree does not become enforceable. In support of this contention, learned senior advocate has relied upon the decision rendered in case of Akkayanaicker Vs. A.A.A. Kotchandainaidue and another reported in AIR 2004 Supreme Court 4822 for the proposition of law that due to legislative bar for execution of decree subsequently the enforceability of decree shall commence from the date of decree is amened and period of 12 years would be counted from the date of amendment of decree. Firstly, in the case on hand, there was no such event as occurred so to say that there was any legislative bar to file Execution Petition by the plaintiffs within a period of 12 years as provided under Article 136 of the Limitation Act. As such this Court has no occasion to examine as to what exact relief is sought by the plaintiffs in Execution Petition No.1 of 2007 because no copy thereof has been placed on record either before this Court or before trial Court. Apart from it, it is not the case of the plaintiffs that the defendant Nos.6 to 13 took any recourse under Section 28 of the Specific Relief Act. It is also not the case of the plaintiffs that they have deposited balance sale price while executing the said decree passed in Special Civil Suit No.31 of 1972. At no point of time, after passing of the decree, in the year 1972, either deceased Bhagvandas Patel or any of his legal heir i.e. plaintiffs herein made any attempt to compel the said Punmaji Marwadi or his legal heirs i.e. defendant Nos. 6 to 13 to obtain required permission from the Government according to the Act No.12 of 1972. So, now, it is not befitting in the mouth of the plaintiffs to come with a case that because of condition No.5, decree is not enforceable. So, by no stretch of imagination principle of law laid down in Akkayanaicker (Supra) is helpful to the plaintiffs in view of the peculiar facts and circumstances of the case.
6. It is found and noticed by this Court that facts stated in the Civil Suit No.314 of 2004 and in present suit are identical in nature and both the suits are filed against same set of parties. Admittedly, the case of the plaintiffs as to they being in possession of the suit land, was not believed by the Court during the hearing of the injunction application in the said suit and therefore, it cannot be said that the plaintiffs are in the possession of the suit land in view of the decree passed in the year 1972. In fact, during the interregnum period, the suit land has lost his status on Revenue Survey No.883 as T.P. Scheme came into place. The plaintiffs cannot be permitted or allowed to raise any right on the basis of said decree, which is otherwise not enforceable being time barred as per the Article 136 of the Limitation Act. Under the circumstances, the defendants are put into the possession through legal and valid documents executed by the sellers, who are legal owners of the suit land. Before that, the original sellers were in possession of the suit land and said fact is eloquent from the various public notices published in the year 1991 and subsequently, the findings on the facts recorded by the Trial Court in litigation filed in the year 2004, disbelieving the plaintiffs possession being forcibly obtained by the defendant Nos.1 to 13 herein. So in pursuance to the sale deed, the contesting defendants sanctioned development plan from the competent Authority and commenced the construction in the year 2004, still, however, the plaintiffs slept over the right for a considerable period of two and half years and allowed the contesting defendants to go ahead with the construction. So, the plaintiffs are not entitled for injunction on the principle of delay, laches and acquiescence.
As the plaintiffs have notice of both the registration of the documents for the suit land in the year 1999 and the possession of the suit land being with the original seller since 1991 and prior to it.
As recorded in para 6 herein above, it would practically unjust to give a remedy because of the plaintiffs conduct, the contesting defendants commenced construction since the year 2004. The plaintiffs by their own conduct, done nothing for fairly long period. Thus, lapse of time and delay are most material aspects because of length of delay and nature of acts done during the interregnum period, nature of orders sought by the plaintiffs would cause injustice in taking one or other course, so far as nature of remedy sought in the injunction application. So on this count, the plaintiffs are not entitled to claim any discretionary relief because of laches and delay and further the plaintiffs are approaching the Court by way of second round of litigation, which is nothing but abuse of process of law.
8. One more important fact requires to be noted herein is such that the plaintiffs by way of registered sale agreement, transferred their interest into the suit land in favour of one Mr. Rajan Rameshchandra Choksi and others in the year 1975. Meaning thereby, the plaintiffs relinquished their interest in the suit land and therefore, on this count also, the plaintiffs are not entitled to pray any relief qua contesting defendants.
9. Lastly, learned advocate Ms. Archana Acharya representing one of the sellers submitted that the defendant No.10 was not aware as to what is stipulated in the sale deed executed in favour of contesting defendants and thus, supports the plaintiffs case. Needless to say that defendant No.10 has not challenged sale deed executed by her in the year 1999 and therefore, it is not befitting in the mouth of defendant No.10 to come out with a case that she does not as know to what is stipulated in the said sale deed. Ignorance of contents made in the registered sale deed is not innocent but is made with a view to help the plaintiffs case.
10. The offshot of above discussion is such that the plaintiffs case which rests on the decree of 1972 is hopelessly time barred as per Article 136 of the Limitation Act. Further, the suit to cancel the sale deed executed in the year 1999 is also hopelessly time barred as per Article 56 of the Limitation Act. The injunction application moved in second round of litigation is nothing but it is an abuse of law as both the injunction applications contain identical fact and further injunction application is not tenable in view of the principle of delay, laches and acquiescence and thus, learned trial Judge has rightly found and observed that the plaintiffs have failed to prove the ingredients of the Order 39, Rule 1 and 2 of the Code of Civil Procedure and in turn, this Court does not find any perversity and illegality in the impugned order. Therefore, present Appeal From Order is dismissed accordingly. No costs.
Civil Application No. 5846 of 2013 & Civil Application (ST.) No.6085 of 2013 :
Pending hearing of this Appeal, the plaintiffs have filed Civil Application No.5846 of 2013 to join Shree Parshwanath Corporation as party respondent No.15 and another Civil Application (ST.) No. 6085 of 2013 has been moved to bring the legal heirs of deceased defendant No.7 on record, require to be disposed of as the plaintiffs can bring legal heirs or add any party in the plaint before the Trial Court and therefore, both the Civil Applications do not survive, are disposed of in view of the disposal of the Appeal.
Civil Application No.9182 of 2013 :
In view of the dismissal of the main Appeal From Order, the Civil Application does not survive. Hence, the Civil Application stands disposed of. Notice is discharged. Ad interim relief granted earlier, if any, stands vacated forthwith.
FURTHER ORDER :
Learned advocate Mr. Ajay Jagirdar appearing for the appellants requests to continue the relief granted vide order dated 23.8.2012, so as to enable the appellants to approach the Hon ble Apex Court.
For the reasons recorded in the order, no case is made out to continue the relief in terms of the order dated 23.8.2012 any more and therefore, request of learned advocate is hereby declined.
(S.H.VORA, J.) YNVYAS Page 13 of 13