Gujarat High Court
Kokilaben vs Madhuben on 24 August, 2011
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CA/7547/2011 23/ 23 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 7547 of 2011
In
APPEAL
FROM ORDER No. 258 of 2011
WITH
CIVIL
APPLICATION - FOR STAY No. 7446 of 2011
In
APPEAL
FROM ORDER No. 255 of 2011
=========================================
KOKILABEN
WD/O DECEASED RAMANGIRI MANIGAR THRO P O A & 4 - Petitioner(s)
Versus
MADHUBEN
D/O DECD.ATMAGAR SWAROOPGAR & 11 - Respondent(s)
=========================================
Appearance :
CIVIL
APPLICATION - FOR STAY No. 7547 of 2011
In
APPEAL
FROM ORDER No. 258 of 2011
MR
P.S.CHAMPANERI for Applicant / Appellant(s) : 1 - 2.
None for
Opponent / Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.3.1, 1.3.2,
1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 - 3, 3.2.1,
3.2.2, 3.2.3,3.2.4 - 4, 4.2.1, 4.2.2, 4.2.3,4.2.4 - 5, 5.2.1,5.2.2 -
6, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.6, 6.2.7,6.2.8 - 9, 9.2.1,
9.2.2, 9.2.3,9.2.4 - 15.
MR. KAMAL TRIVEDI, Ld. AG and Senior
Counsel with Ms Sangeeta Vishen with Mr. Harsh Jani - for Opponent /
Respondent No.12
CIVIL
APPLICATION - FOR STAY No. 7446 of 2011
In
APPEAL
FROM ORDER No. 255 of 2011
MR.
B.B.NAIK with MR PARTHIV A BHATT for Applicant / Appellant(s) : 1 -
2.
None for Opponent / Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3,
1.3.1, 1.3.2, 1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3,
2.2.4,2.2.5 - 3, 3.2.1, 3.2.2, 3.2.3,3.2.4 - 4, 4.2.1, 4.2.2,
4.2.3,4.2.4 - 5, 5.2.1,5.2.2 - 6, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5,
6.2.6, 6.2.7,6.2.8 - 9, 9.2.1, 9.2.2, 9.2.3,9.2.4 - 15.
MR. KAMAL
TRIVEDI, Ld. AG and Senior Counsel with Ms. Sangeeta Vishen with Mr.
Harsh Jani - for Opponent / Respondent No.16
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 24/08/2011
ORAL
ORDER
Both the aforesaid Appeals from Order and the aforesaid two Civil Applications are arising out of the impugned judgment and order passed below Application (Exh.5) in Special Civil Suit No.269 of 2010 as well as order passed below Application (Exh.5) in Special Civil Suit No.710 of 2010 by the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur at Ahmedabad, both dated 22.6.2011, on the grounds set out in the memo of both the Appeal from Orders.
Heard learned learned Counsel Mr. P.S.Champaneri for the Appellants in Civil Application No. 7547 of 2011 in Appeal from Order No.258 of 2011 and learned Senior Counsel Mr. B.B.Naik appearing with Mr. Parthiv A. Bhatt for the Applicants / Appellants in Civil Application No. 7446 of 2011 in Appeal from Order No.255 of 2011, as well as learned Advocate General and Senior Counsel Mr. Kamal Trivedi appearing with Ms. S.K.Vishen for the Opponent / Respondent
- Safal Nova Realities Pvt. Limited.
Learned Senior Counsel Mr. B.B.Naik referred to the facts of the case which has a chequerred history including the pedigree, and submitted that the Power of Attorney was executed by some of the co-owners in favour of Respondent No.5/2 - Baldevbhai Sankabhai Desai in Appeal from order No. 258 of 2011 and who is Respondent No.9.2 in Appeal from Order No.255 of 2011, on the basis of which further transactions have taken place. He submitted that the Respondent - Baldevbhai Sankabhai Desai has in turn executed a registered sale deed in favour of the Respondent - Dineshbhai Shivbhagwan. Learned Senior Counsel Mr. Naik submitted referring to the various details and also the impugned order passed below Application (Exh.5) in both the Suits, by which the injunction has been vacated that the approach of the Court below, i.e. the lower Appellate Court is totally erroneous. He pointedly referred to some of the observations made in the impugned order and submitted that the Court has failed to appreciate that the Power of Attorney is not executed in favour of the Respondent - Baldevbhai Sankabhai Desai, and it was not genuine, which has been disputed in the said Suit. Further, it was submitted that if it is a subject matter of evidence at the trial, then the Court ought to have considered the other relevant material, and has failed to draw the inference, which is required under the pedigree. For that purpose, he again referred to the observations made in the order of the Appellate Court and further submitted that if the Power of Attorney is not executed by all the co-owners then what would be the effect of such Power of Attorney or any further transaction which may have taken place. He therefore submitted that if the Power of Attorney is not genuine, or alternatively, if it was not valid as all the co-owners have not executed the same, then, the subsequent transactions which may have taken place, will have no effect, which has not been appreciated by the lower Appellate Court. He also referred to the record and details at length to emphasize the submissions made by him, particularly with regard to the observations made in paragraphs 10 and 11 at pages 44 and 45 and also of the impugned order and submitted that when genuineness of the Power of Attorney is disputed, the order with regard to the preservation of the disputed land in question would have been passed. Referring to the observations made in paragraph 14, learned Judge has considered the guidelines with regard to the grant of injunction and has failed to consider the aspect of burden of proof. He pointedly referred to the details and submitted that if broadly it was pointed out that all the co-owners have not executed the Power of Attorney, it will have some bearing on subsequent transaction, and that by itself should have been considered for the purpose of application for injunction as if the property is not preserved it may lead to further complication.
Learned Senior Counsel Mr. Naik submitted that normally, in such disputes, the approach of the Court should be to maintain the property as it is so that ultimately if it is decided in favour of either party, it is not causing prejudice. He further submitted that if the decree is passed, then it may not remain a mere paper decree, and therefore, the Court would pass an order directing the parties to maintain status quo to preserve the property as it is so that the rights of the third party is not created and the irreversible situation is not created. he pointedly referred to this aspect and submitted that if the injunction as prayed for is not granted, it will affect the Plaintiffs - Appellants herein, as it would lead to the creation of third party right. Further, learned Senior Counsel Mr. Naik submitted that the inference, which the Court is to draw, has not been drawn. However, the conduct of the Defendants is also not considered. He further submitted that irreversible situation may not be created and if the injunction is not granted as could be seen from the facts, the Respondent - Safal Nova Realities Pvt. Limited would proceed further and infact it has proceeded further, and therefore, it would cause prejudice to the rights of the Appellants - Original Plaintiffs.
In support of his aforesaid submissions, learned Senior Counsel Mr. Naik referred to and relied upon the judgment of the Hon'ble Apex Court in case of Special Land Acquisition Officer and Otehrs v. Mallanagouda Rayanagouda Patil and Others, 1985(5) SCC 544. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Gangubai Babiya Chaudhary and Others v. Sitaram Bhalchandra Sukhtankar and Others, AIR 1983 SC 742 and pointedly referred to the observations made in paragraphs 6 and 7. Learned Senior Counsel Mr. Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Dalpat Kumar and another v. Prahlad Singh and others, AIR 1993 SC 276 and pointedly referred to the observations made in paragraphs 4 and 5 to further emphasize with regard to the criteria or the guidelines which are required to be considered for the purpose of granting injunction and emphasized the observations made in paragraph 5 which reads as under:
"......................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 parties, 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. ..................... Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
Learned Senior Counsel Mr. Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Dorab Cawasji Warden v. Coomi Sorab Warden and others, AIR 1990 SC 867 and pointedly referred to the observations made in paragraphs 27 and 28 and submitted that it has also referred to and discussed the earlier English judgments with regard to the principles which have been discussed in paragraphs 14 and 15. He therefore submitted that both the present Appeals from Order may be admitted by which the injunction has been vacated by the lower Appellate Court and the position may be restored.
Learned Counsel Mr. P.S.Champaneri appearing for the Appellants in Appeal from Order No.258 of 2011 has also referred to the papers at length and tried to support the submissions canvassed by learned Senior Counsel Mr. B.B.Naik. He submitted that though he has adopted the submissions made by learned Senior Counsel Mr. B.B.Naik, he would supplement the submissions, for which, he referred to the details and submitted that the transactions have taken place from time to time. He submitted that as a Power of Attorney holder of the three ladies, the Respondent No. 5/2 - Baldevbhai Sankabhai Desai could not have executed a sale deed without the approval of the co-owners. He also referred to and emphasized the conduct of Respondent No.6 and submitted that as per the panchnama, which is produced at Exh.14, there was only some material pending, but no construction was made, whereas inspite of knowing the pendency of such application with the Suit, the Respondent - Safal Nova Realities Pvt. Limited proceeded further, which suggest about their conduct, which he has pointedly referred. Therefore, he has submitted that the construction has been made by the Respondent No.16 - Safal Nova Realities Pvt. Limited with own eyes knowing pending litigation as well as application for injunction, and therefore cannot be heard to say about the fact that there is any hardship likely to cause if the injunction is granted.
Learned Advocate General and learned Senior Counsel Mr. Kamal Trivedi appearing for the Respondent - Safal Nova Realities Pvt. Limited has referred to the pedigree produced on record at pages 31 and 83 of Appeal from Order No. 258 of 2011 and submitted that originally one Swaroopgar was having this land for the purpose as vahivatkarta of Kalimas Temple and since 1948 these entries have been made. The Atmagar Swaroopgar and Devgar Swaroopgar were the two sons. The branch of Atmagar Swaroopgar consisted of widow Chanchalben of deceased Atmagar and daughter Shardaben and Madhuben. Madhuben is Defendant - Respondent No.1 herein, who is said to have initially executed Power of Attorney in favour of Respondent No.5/2 - Baldevbhai Sankabhai Desai. Learned Advocate General and learned Senior Counsel Mr. Kamal Trivedi submitted that there are five registered sale deeds after the Power of Attorney was executed on 12.3.1993 and the said Power of Attorney is sought to be challenged or doubted after so many years during which about five transactions with registered sale deed have taken place. For that purpose, he submitted that, on the basis of Power of Attorney executed by the three ladies as stated above on 16.4.1993 in favour of Respondent No.5/2 - Baldevbhai Sankabhai Desai. Thereafter on 18.9.1993, the registered sale deed was executed by four persons in favour of Defendant Nos. 6 to 11. The said four persons are original Defendant Nos. 2, 3, 4 and 5 executed registered sale deed in favour of Original Defendant Nos. 6 to 11, i.e. Vedprakash Devkinandan and others known as Chiripal Group. The said Defendant Nos. 6 to 11 developed the land in question as Nova Party Plot and utilized the same from 1993 to 2006. Thereafter the said Defendant Nos. 6 to 11 - "Chiripal Group" sold it to the Respondent - Safal Nova Realities Pvt. Limited by registered sale deed dated 30.12.2006. Therefore learned Advocate General and Senior Counsel Mr. Kamal Trivedi submitted that for the fist time it is stated that it came to the notice on 30.12.2009 with regard to the construction or the land which is situated at Bodakdev, and the Plaintiffs / Appellants herein have filed a Suit on 23.4.2010 on 12.10.2010.
The ad interim relief was refused. Learned Advocate General has also referred to the paper book which he has supplied referring to the various revenue record entries in village Form 7/12 and submitted particularly referring to the Entry no.1806 produced at mark 22/3 and other Entry No.2456 at mark 22/4 and also Entry No.3006 at mark 22/6, how Baichanchal considered to be an exclusive owner though the claim has been made by the Appellants herein with regard to their right, title and interest. Leaned Advocate General and Senior Counsel Mr. Kamal Trivedi submitted that infact as could be seen from the Entry No.3006 at Mark 22/6 that when on the one hand it is noted that there are no heirs of Bai Chanchalben whereas the Entry is sought to be mutated in the name of the heirs which was thereafter taken in revision and ultimately SSRD passed a detailed order which he has referred to in detail. He pointedly emphasized the details in the order of the SSRD produced with the paper book and submitted that he has considered in detail in entire history with regard to the land and various Entries. He has also submitted that it is required to be mentioned that Respondent / Defendant Nos. 6 to 11 made an application for getting NA permission which has been granted, and on the basis thereof, ultimately, even in the government record of the Town Planning Department when the T.P.Scheme No.50 for Bodakdev was made, the names of Respondent Nos. 6 to 11 have been mentioned in the column of owners. He therefore submitted that this prima facie suggest about the fact that the transactions have taken place which has never been objected, and for the first time, after 20 years, the Appellants - Original Plaintiffs have raised the dispute with regard to Power of Attorney contending that it is not genuine, and alternatively, even if it is genuine, it has not been signed by all the co-owners, and therefore, even subsequent transactions would be null and void. However, learned Advocate General and Senior Counsel Mr. Kamal Trivedi submitted that as pointed out from the record, infact Bai Chanchal was accepted by the revenue authorities as the owner though initially it was limited right of occupation. She has been accepted as the only owner and on the basis thereof further transactions have taken place by registered sale deed, and therefore, the Court having considered all these aspects has passed the order, which cannot be said to be erroneous. Learned Advocate General and Senior Counsel Mr. Kamal Trivedi submitted that Defendant No.1-Madhuben is the daughter of Bai Chanchal from whom the present Appellants / Plaintiffs are claiming right, title and interest whereas as could be seen from the record Bai Chanchal was the owner without any heirs which is a matter of appreciation of evidence. Therefore, it cannot be said that the order made by the Court below is erroneous.
Leaned Advocate General and Senior Counsel Mr. Kamal Trivedi submitted that the submissions have been made with regard to the burden of proof, drawing of inference and the guidelines / criteria for grant of injunction. However, he submitted that though much emphasis was given on the conduct of the Respondent - Safal Nova Realities Pvt. Ltd., the conduct of the Appellants - Plaintiffs is also required to be noted as they have awaken from slumber after so many years, which itself would dis-entitle them from any discretionary relief. He pointedly referred to the details and the facts and submitted that the five registered sale deeds which have taken place are sought to be challenged on the basis that the Power of Attorney which was executed in the year 1993 in favour of Respondent No. 5/2 - Baldevbhai Sankabhai Desai is not genuine and alternatively, it is not signed by all the co-owners though the revenue record suggest otherwise, which has been discussed at length in the order of SSRD. Further, learned Advocate General and Senior Counsel Mr. Kamal Trivedi submitted that the submissions have been made for the burden of proof and the inference regarding the approach of the Court, but it has not been pointed out as to what evidence has been placed with regard to drawing any inference in favour of the Appellants / Plaintiffs in such disputed questions, requiring a detailed examination on the basis of the evidence. Therefore, the inference could have been drawn which has also been noted by the Court below. Further he submitted that it is for the Appellants / Plaintiffs to come forward instead of casting a burden on the Defendants that they have to produce the documents, failing which the inference could be drawn. Moreover, even if some documents are not produced, the Appellants / Plaintiffs having called upon the Defendants by making necessary application, and therefore, the submission made by learned Counsel for the Appellants / Plaintiffs that inference ought to have been drawn, cannot be accepted. Further, learned Advocate General and Senior Counsel Mr. Kamal Trivedi submitted that the criteria for grant of injunction is very well settled and the reliance placed by learned Senior Counsel Mr. Naik in case of Dalpat Kumar and another v. Prahlad Singh and others (supra) infact refers to the repeated round of litigations in that case and still the injunction granted by the High Court was not held to be justified as it has been observed that the doctrine of lis pendence under Section 52 of the Transfer of Property Act would be appreciated if any alienation is made. The Court has also referred to the prima facie case, balance of convenience and irreparable loss.
He therefore submitted that the Court had to weigh the rival claims, and after discussion, the impugned order has been passed, which cannot be said to be erroneous and therefore the present petition may not be entertained. He also referred to the judgment of the Hon'ble Apex Court in case of Kishorsinh Ratansinh Jadeja v. Maruti Corporation and Others, (2009) 11 SCC 239 and further emphasised the observations made therein particularly paragraphs 18, 19 and 41 to support his submission. He pointedly referred to the observations made in paragraph 41 to emphasize that the conduct of the Appellants / Plaintiffs may also be considered in the facts of the case that they have awaken from slumber after so many years and therefore that itself would dis-entitle from any relief and both the Appeal from Orders may not be entertained.
In view of the rival submissions, it is required to be considered whether the present Appeal from Order would be entertained or not.
As it transpires from the material and evidence as well as rival submissions which have been discussed threadbare in detail, clearly suggest from the facts which have been placed on record about the history that the Appellants are claiming share in the property as the heir of one of the branches as shown in the pedigree produced at page 83 in Appeal from Order No. 258 of 2011. Originally, one Swargoopgar and his widow had two sons - Atmgar Swaroopgar and Devgar Swaroopgar. The branch of Atmgar Swaroopgar consisted of widow Chanchalben of deceased Atmagar and daughter Shardaben and Madhuben - Respondent No.1. Whereas Devgar Swaroopgar another son of the deceased Atmagar Swaroopgar had five sons who in turn had their own descendants which is stated in detail in the pedigree. The claim made by the Appellants herein is that it is the joint property in which they have right, title, interest and they have undivided share in the said land in question, and therefore, any transaction without their knowledge or consent would be void. The submissions have also been made that the Defendant Nos. 2 to 5 in collusion have made transactions behind the back of the Appellants / Petitioners, for which the registered documents are also executed, but they are void, and as it has been executed without any consent or knowledge of the Appellants / Petitioners with an oblique motive and / or fraud, such transactions and / or the documents executed, are void. It is also contended that further transactions, including the transactions with the Respondent - Safal Nova Realities Pvt. Ltd. would therefore also be without any basis and no right could be claimed on the basis of the right, title or interest claimed by anybody by misrepresentation or fraud. Therefore, much emphasis is made by learned Counsel Mr. Naik that if the initial transaction itself is void, the subsequent transaction, even by registered sale deed would be void and would not convey any title in favour of the Respondent - Safal Nova Realities Pvt. Ltd., and therefore, the Respondent - Safal Nova Realities Pvt. Ltd. cannot claimed to be a bonafide purchaser for value.
It is required to be appreciated in light of these submissions which have been made, the other side of the entire submissions have also been much emphasized by learned Advocate General and Senior Counsel Mr. Kamal Trivedi for the Respondent - Safal Nova Realities Pvt. Ltd., referring to the pedigree in detail and the transactions which have taken place.
As recorded hereinabove, in the year 1993 Defendant Nos.2 to 5 are said to have conveyed by executing registered sale deed to original Defendant Nos. 6 to 11. Thereafter, the original Defendant Nos. 6 to 11 are said to have developed the land in question, enjoyed it for about 8 to 10 years in the name of Nova Party Plot and it is thereafter they have entered into transaction with Defendant No.4 by executing a registered sale deed on 30.12.2006. Thereafter, for the first time in December, 2009 it is stated that it came to the knowledge of the present Appellants / Plaintiffs about such transactions or the irregularity, and subsequently, the Suit is filed on 23.4.2010. The ad interim relief was also refused in Appeal from Order No.258 of 2011 and there is reference to various entries made for this purpose. Therefore, it is very evident that though the original Plaintiffs / Appellants herein have claimed about the right, title, interest that it is a joint undivided share in the property, the entries, which have been referred to also makes a prima facie case and suggest about the various stages, and ultimately, the transaction with regard to the sale in favour of the Respondent - Safal Nova Realities Pvt. Ltd. Therefore, a bare perusal of this entire record and the rival submissions would make the few aspects very evident that on the one hand the right is claimed on the basis that it is a joint property between the two branches and the Plaintiffs who belong to one branch and have undivided share in the said land in question, and therefore, any subsequent transaction without their knowledge or consent is void. On the other hand a detailed reference to the entries coupled with the passage of time and the development of the property with change of the circumstances from time to time clearly suggest that there are 5 sale deeds executed in between. There is no claim, no objection, and if it is assumed for the sake of argument that the Appellants / Plaintiffs are residing in a different area where they may not be passing from the land in question every time so that they can notice about the development, still they would know when they are claiming an undivided share in the property which is situated near to the S.G.Highway, which is a fast developed area and cannot be oblivious of the surrounding development. Therefore to say that for years together they had no knowledge, and only in the year 2009 they came to know, is too difficult to accept. Even thereafter as could be seen from the record, what has been claimed is a right or a share in the entire property, but there is no say about the conversion of the land into NA, developments thereof, and enjoyment thereof for years, by the Original Defendants. One cannot be so ignorant of ones own right or title in the property that the other branch gets the NA and makes further development for use and enjoyment in the form of a club and the persons like Plaintiffs / Appellants are not even aware. Therefore, without any further elaboration, on the one hand though the right is claimed, the entire chain of events and the circumstances over a period of time, which have taken place, and 5 sale deeds which have been executed, cannot be brushed aside only on the ground that the claim is made that the Appellants / Plaintiffs were not aware or had no knowledge about the subsequent transaction. Further, even if it is assumed for the sake of argument that they had no knowledge, still what would be the position pending hearing of the Suit with regard to the interim relief, is required to be considered.
The Hon'ble Apex Court has laid down the guidelines in the case of Dorab Cawasji Warden v. Coomi Sorab Warden and others (supra). The observations made in paragraphs 14 with regard to the guideline clearly provide that not only a prima facie case but balance of convenience and the comparative hardship is required to be considered. The Court is required to weigh the respective claimants and try to balance the same so that least harm is caused to either party. That has lead to the evolvement of the concept of comparative hardship, which again has a reference comparing the hardship that may be caused to either party, by passing the order. Therefore, in the facts of the present case, in light of the circumstances and the developments which have taken place and also considering the provisions of Specific Relief Act, it could be said that, ultimately the right of the Appellants Plaintiffs should be protected for claiming the adequate damages. Therefore, if it could be compensated in terms of money, the injunction should not follow.
It is required to be mentioned that normally the approach of the Court would be to maintain status quo with regard to the disputed property in order to see that ultimately, the property or the land in question is preserved till the rights are crystallized and decided finally and that could be a equitable justification. However, at the same time, it is not desirable in every case, as otherwise, it lead to causing a great comparative hardship to one party merely because some claim is made, which is kept pending for some time or the years together causing irreversible damage to the other side. It is in such circumstances, the Court has to consider the comparative hardship and pass appropriate order keeping some provisions for compensating the party who ultimately may succeed, even if the property is allowed to be developed.
It is in these circumstances, time and again the Hon'ble Apex Court has made observations in case of Dalpat Kumar and another v. Prahlad Singh and others (supra) and observed:
"The phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice."
The Hon'ble Apex Court has emphasized about the sound exercise of judicial discretion to meet the ends of justice and the words of balance of convenience and irreparable loss or the comparative hardship are stated to be the words of width and elasticity.
Further, as observed by the Hon'ble Apex Court in case of Gujarat Bottling Co. Ltd. And Others v. Coca Cola Co. And Others, (1995) 5 SCC 545 while considering the aspect of interim injunction, balance has to be struck by providing some kind of an undertaking with some deposit to compensate the other party in case the decision is in favour of that party.
Therefore, though normally the status quo with regard to the land or the property in question is ordered to be maintained so as to protect the interest of both sides till the rights are crystalized and injunction is granted, however, for that there has to be a strong primafacie case and the balance of convenience must be almost equal on each side, whereas in the facts of the present case, as discussed above, it cannot be said that the primafacie case or the balance of convenience is totally in favour of the Appellants / Plaintiffs, particularly considering the claim, delay, conduct and also the development which has taken place by 5 registered sale deeds during the entire period, which has not been challenged. It is in these circumstances, the party cannot be restrained from making use of the property / land in question which is purchased as a bonafide purchaser. At the same time if it is permitted to be developed, the rights of the third party may be created and it may cause prejudice to the Appellants / Plaintiffs, if ultimately they succeed. It is in these circumstances, it would be in the fitness of things, if the Respondents / Original Defendants may be permitted to make further construction or the development, but shall deposit the amount of Rs.50 lacs alongwith an undertaking that in case the Appellants / Plaintiffs succeed in the respective Suit, they will not claim any right on the ground that now they have been permitted to develop and / or shall also undertake to deposit any amount, which the Court may decide as damages ultimately if they are not in a position to restore the possession of the land in question.
The amount of Rs. 50 lacs in each Suit, i.e. Rs.1 crore shall be deposited in the name of the Registrar, High Court of Gujarat, which can be invested in a fixed deposit with any Nationalized Bank subject to renewal till the final outcome of the present Appeal from Orders and / or Civil suit.
Therefore, both the Appeals from Order are Admitted and the interim relief as prayed for in both the Civil Applications, regarding the stay of the execution and operation of the order dated 22.6.2011 passed by the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur at Ahmedabad, below Application (Exh.5) in Civil Suit No.269 of 2010 as well as order passed below Application (Exh.5) in Special Civil Suit No.710 of 2010 cannot be entertained, though as stated above, the balance could be maintained for both the rival claimants of both the sides as stated hereinabove.
With the aforesaid observations, both the Civil Applications stand disposed of accordingly.
The parties may also move the Civil Court for expediting the hearing of the Suit.
(Rajesh H. Shukla,J) FURTHER ORDER After the order was pronounced, learned Advocate Mr. Y.B.Vaghela for learned Senior Counsel Mr. P.S.Champaneri for the Applicants requested for stay of the operation of the order.
Learned Advocate General and Senior Counsel Mr. Kamal Trivedi with learned Advocate Ms. Sangeta Vishen for the Opponent has stated that there is no stay operating, and therefore, the request may not be entertained.
As there is no stay operating, there is no question of stay of the operation of the present order and request is therefore rejected.
(Rajesh H. Shukla,J) Jayanti* Top