Gujarat High Court
Dadabhai Abhalbhai Lalu vs Lhs Of Ramanbhai Bhailalbhai Patel on 26 February, 2024
NEUTRAL CITATION
C/AO/26/2024 ORDER DATED: 26/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 26 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 26 of 2024
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DADABHAI ABHALBHAI LALU & ORS.
Versus
LHS OF RAMANBHAI BHAILALBHAI PATEL & ORS.
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Appearance:
MR MEHUL S SHAH, SENIOR ADVOCATE WITH
MR DIGANT M POPAT(5385) for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
for the Respondent(s) No.
1,10,1.1,1.3,2,2.1,2.2,2.3,2.4,2.5,2.6,2.7,2.8,3,3.1,3.2,3.3,4,5,6,6.1,6.3,7,8,8.1
,8.2,8.3,8.4,8.5,8.6,8.7,9,9.1,9.2,9.3
MR SHALIN MEHTA, SENIOR ADVOCATE WITH
MR VEDANT AVADHOOT SUMANT(13736) for the Respondent(s) No.
10.1,1.2,6.2,7.1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 26/02/2024
ORAL ORDER
1. This appeal from order is filed being aggrieved and dissatisfied with the impugned common order passed by the learned Principal Senior Civil Judge, Savli, District :
Vadodara on 30.1.2024 below Exhibits 5, 112, 113 and 114 in Special Civil Suit No.22 of 2018, whereby the learned trial Court has rejected the temporary injunction application of the appellant (Exh.5) and allowed the counter applications of the respondents (Exhs.112, 113 and 114).Page 1 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024
NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined
2. The brief facts leading to filing of this appeal, as stated in the appeal memo, are as under :
2.1 That, the entire parcel of the suit land was owned by the respondents and to be sold to the present appellants;
that the entire transaction was looked over by respondent nos.1 and 2; during the course of transaction and during the process of obtaining title clearance for registered sale deed, the appellants came to know that there are proceedings pending qua the suit property before the Hon'ble Supreme Court and therefore the sale deed in favour of the appellants was not possible at that point of time,; that it was mutually decided that the appellants were to look over the pending proceedings and the registered sale deed will be done in their favour at the end of the proceedings;
2.2 That the possession of the suit property came to be handed over to the appellants by the respondents; that the proceedings before the Hon'ble Supreme Court came to an end, however, the issue as to whether the respondents were agriculturists or not at the time of purchasing the suit property, was kept open to be decided by the learned Mamlatdar; that therefore, the Tenancy cases were registered before the Mamlatdar, Dabhoi, which was disposed of by Page 2 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined holding that the transaction qua purchase of suit property by the respondents was not in violation of Section 63 of the Bombay Tenancy Act; that the said order of Mamlatdar was taken into revision by the higher authority, wherein the order was partly confirmed and the matter was remanded back to the Mamlatdar for the rest;
2.3 That inspite of the above mentioned pending proceedings, the respondents communicated to the appellants that if the outstanding amount of the suit property, as decided by them mutually, is not cleared, then the respondents shall charge interest from the appellants; that the appellants paid the remaining amount through demand drafts as well as cash in the year 2010; that after receiving the entire amount of sale consideration, the respondents herein have been avoiding to enter into and execute the registered sale deed; that therefore, the appellants filed Special Civil Suit No.22 of 2018 (earlier Special Civil Suit No.48 of 2011) for declaring that the appellants are in possession of the suit property, specific performance on part of the respondents to enter into and execute a registered sale deed in favour of the appellants and also permanent injunction against respondents from entering or transferring the said suit property on the basis of oral agreement to sale and contract by conduct; that the respondents have also filed Page 3 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined counter claim along with the written statement; that the appellants have filed injunction application Exh.5; that the respondents have also filed counter applications at Exh.112, 113 and 114; that the learned trial Court has rejected injunction application Exh.5 of the appellants and allowed the counter applications of the respondents Exh.112, 113 and 114. This is this order impugned, which is challenged by the appellants - original plaintiffs before this Court in this appeal from order.
3. Heard learned senior advocate Mr.Mehul S. Shah with learned advocate Mr.Popat for the appellants and learned senior advocate Mr.Shalin Mehta with learned advocate Mr.Sumant for respondents.
4.1 Learned senior advocate Mr.Shah for the appellants has submitted that prima facie case is made out by the appellants, as during the pendency of the suit proceeding, the respondents have entered into several transactions regarding the suit lands. There are various parcels of suit lands involved in the present proceedings and some of the lands were transferred during the pendency of the proceeding, therefore, on that ground only the present appeal from order is required to be allowed by directing the respondents not to enter into any further transaction. He has Page 4 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined submitted that earlier, when the suit is filed there was mere apprehension about it, which now comes true in view of the subsequent transfer made by the parties and if such proceedings are permitted, then the entire suit will become infructuous.
4.2 He has further submitted that there is ample material available on the record by way of revenue receipts and demand drafts which clearly indicate that there is some agreement entered into between the parties regarding the land in question. He has further submitted that even the trial Court, while dealing with this aspect regarding validity and existence of agreement, is found that there cannot be any dispute regarding existence of such agreement looking to the material available on the record at this stage. However, the learned trial Court has not considered the case of the present appellants while considering the interim injunction Exh.5, as the reasons assigned in support of rejecting the application are not sufficient and are also not in consonance with law. He has submitted that on the contrary, the findings given by the learned trial Court are to be considered as perverse, as the learned trial Court, on one hand, has observed that there cannot be any dispute regarding the existence of such oral agreement between the parties and on the other hand, in paragraph 16 onwards, it has held that Page 5 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined looking to the pleadings of the appellants - plaintiffs, no case is made out by the plaintiffs that some written contract is in existence.
4.3 He has submitted that the defendant nos.1 and 2 are acted on behalf of all the other defendants as all the persons are family members and therefore, there is implied or express authority given by all the defendants to defendant nos.1 and 2. He has further submitted that even the public notice issued in the newspaper also indicates about the factum that the defendant nos.1 and 2 are acting on behalf of the other defendants and therefore he has submitted that when prima facie case is made out in favour of the plaintiffs, as the appellants have paid substantial amount by way of cash as well as demand drafts to the respondents and some of the demand drafts, though handed over, are not encashed by the respondents, will not come in the way of the present appellants by holding that there is no agreement or contract existing between the parties.
4.4 In support of his submissions, he has relied upon the judgment of the Hon'ble Apex Court reported in : (i) 2004(8) SCC 488 in the case of Maharwal Khewaji Trust versus Baldev Dass, more particularly para 10 thereof and
(ii) AIR 1984 Guj 126 in the case of Ibrahim Shah Mohamad Page 6 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined versus Noor Ahmed Noor Mohamed. He has submitted that the present appeal from order is required to be allowed as prima facie case is certainly made out in favour of the present appellants and the factors of balance of convenience and irreparable loss are also in their favour, as now the respondents have started to dispose of the properties and the interest of the appellants will be jeopardized if no prohibitory order is passed against the respondents, therefore, he prays to allow this appeal.
5.1 Per contra, learned senior advocate Mr.Shalin Mehta for the respondents has strongly opposed to the submissions made by learned advocate for the appellants at the bar. He has submitted that for the payment cash amount as alleged, the respondents have disputed the signature qua it. He has further submitted that the amount is not paid towards any sale agreement of the lands in question, it is regarding the investment in the company, to be invested by the respondents. He has further submitted that the alleged demand drafts are given in the year 2007 and the suit is filed in the year 2011. The conduct also speaks about the inaction on the part of the plaintiffs and it certainly poses questions regarding the entitlement of equitable relief looking to their conduct.
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NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined 5.2 He has also submitted that the learned trial Court has rightly come to the conclusion that the amount which is paid by way of demand drafts in the various names are regarding investment to be made in the company and the amount which is allegedly paid to the respondents by the appellants are not directly connected with the amount which is paid towards the consideration of the land in question. There is huge land of about 171 acres in total and in the present facts and circumstances, no body would believe that a person who is going to purchase the land in question of 171 acres has not entered into written contract and agreement with the seller.
5.3 He has submitted that in the present case, it is an admitted position that there is no written contract exists. He has further submitted that he is not pressing the submission qua the law of champerty, as the plaintiffs have paid the amount for the litigation pending at the Supreme Court regarding the land in question between the respondents and the other persons. He has further submitted that the demand drafts, which are allegedly paid by the plaintiffs to the respondents, are given in the year 2006 & 2010, but they are not realized by the respondents as they were aware of this fact and this fact was not properly pleaded by the plaintiffs in the plaint and at the time of hearing, the Page 8 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined plaintiffs have produced the evidence regarding the demand drafts, but the plaintiffs have not stated such fact and hence, they have not come with clean hands.
5.4 He has further submitted that the demand drafts are not produced in the year 2006 for realization and if that was the position, then it can be presumed that in the year 2006, the defendants have denied the performance of the agreement and under the circumstances, the plaintiffs have to file the suit within three years. He has submitted that it will not be helpful to the plaintiffs to prepare and produce new demand drafts in the year 2010 to bring the suit within the period of limitation as the suit is filed in the year 2011. 5.5 He has further submitted that admittedly, the learned trial Court has believed that the possession of the present defendants being the owners of the property in question as their names are there in the revenue record and they are in the possession. There is no documentary evidence produced by the plaintiffs to point out that they actually cultivate the lands in question. He has submitted that the learned trial Court has rightly observed that there is no bill of fertilizers, etc., produced by the plaintiffs on record. Nothing sought of such documentary evidence is produced on the record which indicates that the plaintiffs are in Page 9 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined possession of the suit property.
5.6 He has further submitted that the learned trial Court has rightly believed the defence raised by the present defendants that the amount, which is even received by the defendants, is given towards the investment in one company and the plaintiffs have not produced any material evidence to establish their case that it is paid towards sale consideration of the land in question. Therefore, the materials produced by the plaintiffs cannot be considered sufficient materials, looking to the nature of dispute involved in the injunction application as no prima facie case is made out. He has submitted that therefore, the factors of balance of convenience and irreparable loss are also not required to be considered. 5.7 In support of his submissions, he has relied upon the decision of the Hon'ble Apex Court in the case of Wander Ltd., versus Antox India P. Ltd., reported in 1990 Supp. SCC 727, more particularly paragraph 14 thereof. He has submitted that when the second view if possible, then the Court should not interfere with the findings of the learned trial Court, unless the Court has come to the conclusion that the learned trial Court has taken impossible view in the matter which is not the case here and therefore, prays to dismiss the present appeal.
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NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined 6.1 I have considered the rival submissions made at the bar. I have perused the impugned order passed by the learned trial Court. I have considered the various documents available on record. From record it transpires that some of the demand drafts are handed over in the year 2006 and 2010, some of which are encashed and some receipts towards the cash transaction are also issued, that too by the employee of the company, which are on the record. It is an admitted fact that even from the case of the plaintiffs that there is written contract regarding the disputed land, no agreement is executed between the parties and only oral agreement is there and the suit is based on oral agreement and in support of the oral agreement, the transactions are entered into by the plaintiffs with the respondents. 6.2 In view of above and in view of the submissions made by the learned advocates for the respective parties at the bar, I am of the opinion that prima facie, it reveals that there is no authorization given by the defendant Nos.5, 6, 8 and 9, as they have not executed any power of attorney in favour of defendant Nos.1 and 2. It is relevant to note that consideration is initially paid in the year 2006 by way of demand drafts and it is once again paid in the year 2010 and most of the demand drafts are not realized even then Page 11 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined and if the consideration is paid in the year 2006, then the suit is filed in the year 2011, which is undisputed. The case of the defendants, which is put forth, is that the amount is paid towards the investment in the company where the defendants are associated. Further, regard cash transaction, the vouchers are signed by the employee and not by any defendant/s. It would further strengthen the defence of the defendants that it is paid towards the investment in the company and not for the suit lands. Considering the provisions of the Transfer of Property Act and the Registration Act, when the person who is intending to buy huge immovable property i.e. agricultural land in question of around 171 acres in total, then any prudent man will buy the property without entering into written agreement. This factum is certainly required to be considered by keeping in mind the conduct of the present plaintiffs, whereby the plaintiffs have allegedly handed over the demand drafts in the year 2006 and have paid cash amount till the year 2011. Since the defendants have not realized some of the demand drafts in the year 2006, the plaintiffs have not done anything till the year 2011 i.e. till filing of the suit. 6.3 There is also nothing on the record to show that the plaintiffs have entered into possession by producing any documentary evidence which indicates that they are Page 12 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined cultivating the land in question. Further, the revenue rules are certainly there but that is like revenue record and they are only for fiscal purpose and it can be presumed that there is some title which conveys that the plaintiffs are in actual possession of the land in question. Therefore, in absence of cogent and convincing material to establish the prima facie case, the provisions of Order XXXIX Rule 1 and 2 of the Code are required to be kept in mind, which reads as under:
"Order XXXIX : TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS.
1. Cases in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] Page 13 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 5 [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach. -- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such Page 14 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit." 6.4 It is also relevant to refer to the provisions of Order XLIII Rule 1 of the Code, which reads as under :
Order XLIII Rule 1 : Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely:--
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];
(b) ***
(c) an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(e) ***
(f) an order under rule 21 of Order XI;
(g) ***
(h) ***
(i) an order under rule 34 of Order XXI on an Page 15 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
[ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) ***
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; [(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]
(o) ***
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);
(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;
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(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(v) ***
(w) an order under rule 4 of Order XLVII
granting an application for review.
[1A. Right to challenge non-appealable orders in appeal against decrees.--(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]"
6.5 It is further relevant to refer to the provisions of Page 17 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined Section 104 of the Code, which reads as under :
"104. Orders from which appeal lies. -- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:--
[(ff) an order under section 35A;] [(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.] (2) No appeal shall lie from any order passed in appeal under this section."Page 18 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024
NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined 6.6 At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Wander Ltd. (supra), more particularly para 14 thereof, which reads as under :
"14. The appeals before the division bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that Page 19 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. V/s. Pothan Joseph: (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. V/s. Jhanaton '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate Judgment does not seem to defer to this principle."
6.7 Further, it would be also fruitful to refer to the decision of the Hon'ble Apex Court in the case of P.Satyanarayana versus Nandyala Rama Krishna Reddy reported in (2022) 14 SCC 510, more particularly paragraphs 10 to 19 thereof, which read as under, whereby the issue regarding title and possession is discussed at length.
"10. The Division Bench of the High Court, while reversing the Order of the trial Court, pointed out:Page 20 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024
NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined 10.1 That the predecessor of the respondent plaintiff was issued a certificate under Exhibit P21 dated 16.12.1975 under Section 38E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950;
10.2 That the said certificate is proof enough to show the passing of title in favour of the predecessor of the respondent plaintiff;
10.3 That Exhibit P17, which is Form 1B (Record of Rights) showed that prima facie the respondent was in possession of the land on the date of institution of the suit; and 10.4 That therefore, the person in possession was entitled to an interim order of protection.
11. The High Court also found Exhibit R-6 filed by the petitioner defendant which is the Occupancy Right Certificate issued on 08.04.1996, to be unbelievable, as the predecessor in title of the respondent plaintiff had already been issued a certificate under Section 38E of the aforesaid Act way back on 16.12.1975. The High Court pointed out that the person under whom the defendant Page 21 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined claimed title, namely Gopamma Yadaiah, could not have acquired any right, under the sale deed dated 08.07.1980, after the issue of the certificate under Section 38E of the Act in favour of the predecessor of the respondent plaintiff on 16.12.1975.
12. Insofar as the prior suit filed by the vendor of the respondent7 plaintiff is concerned, the High Court pointed out that it was only a suit for permanent injunction and that the dismissal of the application for injunction without recording any finding relating to possession was of no consequence.
13. The relevant portion of the impugned order of the High Court reads as follows:
"52. It also seems to have misread the order passed on 11.08.2015 in I.A. No. 510 of 2015 in O.S. No. 603 of 2015 (Ex. R10). In the said order, the Principal Senior Civil Judge, Ranga Reddy District observed merely that the photographs filed by the appellant's vendor show that the land is open land without any construction and so also was the property of the respondent, and easementery rights of air and light are prescriptive rights, and the appellant's vendor has to prove acquisition of the said rights for the prescribed period. There is Page 22 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined no mention therein about lack of possession and enjoyment of the appellant's vendor. The above finding as recorded by the trial court also contradicts the claim of the respondent of constructing a compound wall around Acs. 2.00 gts.
of land and possessed by him as stated in para no.4 in Written Statement filed in O.S. No. 603 of 2015."
14. The High Court took note of the fact that under Exhibit P22, which is the Pahani for the year 2003-2004, there was a subdivision of the land in Survey No.272 into Survey No. 272/A and 272/AA and that the Pahanis of all subsequent years in respect of Survey no.272/A were in favour of predecessors-in-title of the respondent plaintiff. On the basis of these findings, the High Court reversed the Order of the trial Court and granted an interim injunction in favour of the respondent plaintiff. Therefore, we do not think that this is a case warranting interference under Article 136 of the Constitution.
15. At the time when this Court ordered notice in the above special leave petition on 02.08.2021, this Court was impressed prima facie with the argument that the withdrawal of the prior suit by the vendor Page 23 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined of the respondent plaintiff would have a serious bearing upon the prayer for interim injunction in the present suit. Therefore, this Court, while ordering notice on 02.08.2021 recorded as follows:
"1. Learned counsel for the petitioner contends that the predecessor of the plaintiff filed O.S. No.603 of 2015 claiming permanent injunction in respect of land measuring 1 acre comprising Survey No.272 ad measuring 2 acres. Such suit was dismissed as not pressed on 02.03.2016. The plaintiff has purchased the property comprising in Survey No.272 on 09.12.2015. The purchaser filed a suit after purchase of the land in respect of which predecessor of the plaintiff has withdrawn suit. Therefore, the suit of the 2 plaintiff was not maintainable.
2. Notice, returnable within four weeks. In the meantime, parties to maintain status quo regarding possession."
16. On the basis of the above order, it was contended by Mr. Shyam Divan, learned senior counsel for the petitioner that the respondentplaintiff was a purchaser pendente lite and that when his suit itself is barred by law, he Page 24 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined cannot be rewarded with an interim injunction.
17. But we are not impressed with the said submission. We have already extracted paragraph 52 of the Order of the High Court which records reasons as to why the High Court thought that the previous proceeding will not be an impediment in the way of the respondent plaintiff filing the present suit and seeking an injunction. As rightly observed by the High Court, the dismissal of the application for injunction in the prior suit, was on account of the fact that the photographs showed the land to be an open vacant land.
18. In Thota Sridhar Reddy and Ors. vs. Mandala Ramulamma and Others, 2021 SCC Online SC 851 this Court had an occasion to consider in extenso the rights conferred by Section 38E of the Tenancy Act. Paragraph 48 of the said decision which reads as follows actually supports the view taken by the High Court in paragraph 49 of the impugned order.
"The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38E of the Page 25 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them."
19. In view of the above, we are of the considered opinion that the impugned order of the High Court does not warrant any interference under Article 136 of the Constitution. Hence, this Special Leave Petition is dismissed."
7. Considering the above stated position of law as well as above stated discussion, I am of the opinion that there is no perversity in the findings given by the learned trial Court nor any illegality or infirmity in the findings. On the contrary, it prima facie transpires that the plaintiffs have failed to establish their strong prima facie case on merits and therefore, the factors of balance of convenience and irreparable loss are also not in favour of the present appellants. This Court does not find any merit at this stage Page 26 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024 NEUTRAL CITATION C/AO/26/2024 ORDER DATED: 26/02/2024 undefined in favour of the appellants. This Appeal from Order, therefore, needs to be dismissed and is dismissed accordingly.
(SANDEEP N. BHATT,J) SRILATHA Page 27 of 27 Downloaded on : Mon Mar 04 20:31:25 IST 2024