Gujarat High Court
Hasmukhbhai Kantibhai Patel vs Piyushbhai Hasmukhbhai Patel on 26 August, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/14434/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14434 of 2015
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 14434 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 14437 of 2015
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 14437 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 14438 of 2015
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 14438 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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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 or any
order made thereunder ?
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HASMUKHBHAI KANTIBHAI PATEL
Versus
MAHESHBHAI HASMUKHBHAI PATEL & 1 other(s)
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Appearance:
MR PREMAL NANAVATI, ADVOCATE WITH MR HARSH V GAJJAR(7828)
for the Petitioner(s) No. 1
MR NIKUNT K RAVAL(5558) for the Respondent(s) No. 1
MR SHALIN MEHTA, SENIOR COUNSEL WITH MS VIDHI J BHATT(6155)
for the Respondent(s) No. 2
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C/SCA/14434/2015 JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 26/08/2019
COMMON ORAL JUDGMENT
1. This group of petitions arising out of an order almost of a similar in nature. As per the request of learned advocates appearing for respective sides, this group of matters is taken up for hearing and disposed of by way of present common judgment. The main matters have been taken up, in view of the fact that in the Civil Applications for vacating interim relief, the learned advocates have jointly submitted to take up the main matters for final disposal. Resultantly this group of petitions is taken up for hearing by treating Special Civil Application No.14434 of 2015 as lead matter and the facts are taken out from said petition.
2. The case in brief of Special Civil Application No.14434 of 2015 is that, petitioner is the original owner and occupier of land bearing Survey No.1614 paiki, City Survey No. 3132/3/C admeasuring 1982.5 sq. yard paikee 552.55.80 sq. mtr., more precisely described in the plaint as well as schedule attached to the impugned registered sale deed, which was said to have been purchased by one Kantilal Ambalal Patel to the petitioner by registered sale documents on 17.07.2004. It is further the case of the petitioner - original plaintiff that in the said land purported to Page 2 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT be sold under the impugned registered documents, the petitioner is running his business in the name and style of Jai Ambe Agricultural Purchase and Sale (Kharid - Vechan) Co - Operative Society Ltd. for sale of agricultural produce and fertilizers. It is further submitted that the whole registered document is goofed up on the basis of old land record showing the name of concerned defendant for valid Form No.7/12. However, the land which is part of Gamtal has already been reflected in city survey number under the relevant notification of Gujarat Government and is being numbered as City Survey No.3133/3/C, and the said city survey number has been reflected w.e.f. 03.07.1996 and as such it has been stated that old land record was cease to exist, even though the so called documents have been executed on the basis of said land record. 2.1 It is further the case of the petitioner that petitioner got married to one Ramilaben and out of said wedlock they have two sons, one son's name is Maheshbhai and another son's name is Piyushbhai. Both of them were sent to Ahmedabad for study and both the sons have appeared to have borrowed money on exorbitance sarafi interest and on account of their bad habits, they are not in good terms with petitioner. One of the sons, Maheshbhai seems to have not repaid the amount which was borrowed from respondent - defendant, at the relevant point of time and the respondent - defendant unlawfully detained Maheshbhai and pressurized him to get the impugned registered sale deed executed Page 3 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT in lieu of so called recovery of amount, which might have been paid as loan to him on sarafi interest and no payment was made towards consideration. Even the documents which has been executed is a document without consideration and, therefore, Maheshbhai had since no right, title or interest in the land in question, which is absolutely a self acquired property of the petitioner, which otherwise could not have been sold by Maheshbahi. 2.2 It is further the case of the petitioner that execution of registered sale documents is also seriously questioned not only on the issue of consideration but on account of it was executed on the basis of old land record and it was mentioned that it is not the property constructed on the land in question. Hence left with no other immediate alternate petitioner has to file an FIR with the concerned Police Station, which was registered as C. R. No. I - 168 of 2012.
2.3 The overall case of the petitioner - plaintiff is that respondent
- defendant has no right, title or interest to pass on the land in question and could not even sold to defendant No.2 since the petitioner is in actual possession, on which the business of selling agricultural produce and fertilizers is being run by the petitioner. The petitioner had to submit a suit three in numbers since there are three separate agreements. The said Civil Suit is registered as Special Civil Suit No. 565 of 2012, in which the injunction Page 4 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT application was submitted by the petitioner below Exh.5. The said injunction application came to be contested which ultimately was rejected by the learned 8th Additional Sr. Civil Judge, Ahmedabad (Rural) vide 10.04.2014.
2.4 It is the case of the petitioner that feeling aggrieved and dissatisfied by the said rejection of Exh.5 application, the petitioner preferred an appeal before the District Court which was registered as Misc. Civil Appeal No.42 of 2014 before the learned 8th Additional District Judge, Ahmedabad (Rural) who also according to the petitioner has confirmed the order passed by the trial Court and dismissed the appeal vide order dated 16.07.2015 and these two orders, whereby the request of interim relief came to be turned down, are made the subject matter of present petition. 2.5 Similar is the position with respect to other two petitions, where the controversy is similar and facts of those cases are almost identical.
2.6 It appears from the record that this petition has been affirmed on 03.09.2015 and came for consideration before the High Court on 09.09.2015, in which draft amendment was tendered and after hearing learned advocates following order was passed;
"Draft amendment is allowed as prayed for. Additional documents are to be taken on record which is in the form of draft amendment Page 5 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT only. If typed copy of such document is not on record, petitioner shall do the needful to provide them.
Heard learned Senior Counsel Mr. P.R. Nanavati appearing for Mr.H.V. Gajjar, learned advocate for the petitioner.
Rule, returnable on 1.12.2015.
Learned advocate for the petitioner is relying upon the decision of Ramdas v. Sitabai reported in 2009(7) SCC 444.
Petitioner has to file an agreement of understanding referred in the pleading.
Both the parties have to maintain status-quo till the next date of hearing.
Direct Service is permitted."
2.7 It appears that the learned Judge has relied upon the decision in case of Ramdas vs. Sitabai, which is reported in 2009 (7) SCC 444 and granted ex parte status quo order till next date of hearing i.e. 01.12.2015.
2.8 It further appears that interim relief came to be continued which ultimately lead the original opponent No.2 to prefer an application for seeking vacation of ad interim relief since this application is not independently to be dealt with as submitted by learned advocates appearing for the respective parties, by virtue of an order dated 21.06.2019, the office was directed to place the main matters for hearing along with Civil Applications. The Page 6 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT contents thereof are not reproduced herein after, since the main matters are taken up for hearing.
3. Learned advocate Mr. Premal Nanavati appearing with learned advocate Mr. Harsh Gajjar has vehemently contended that an order which has been passed by the Court below is not only unjust and arbitrary but without taking note of relevant circumstances. Mr. Nanavati has further contended that here is the case in which the plaintiff is made the scapegoat of sons' misdeed. Actually transactions are at all not taken place. On the contrary criminal complaint has also been filed with regard to the conduct of the respondent, which lead to filing of specific charge sheet and, therefore case is made out prima facie of the offence which has been alleged against respondent and, therefore, the learned Judge ought to have consider this material circumstances before passing impugned order. It has further been submitted that here is the case in which the counter injunction application was submitted by the original defendant No.2 but then the same was to be heard along with the main injunction application. But while passing the impugned order the learned trial Judge has not come out with a specific conclusion on material aspect covering the grant or refusal of the injunction and so was the case with the appellate authority since the appellate court has also not come to specific conclusion. 3.1 Learned advocate Mr. Nanvaty has further submitted that Page 7 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT this refusal of injunction is essentially and equally relevant for claiming equitable relief and the conduct of respective sides has also to be looked into. It is also submitted that prima facie criminal activity, because of which, charge-sheet has been filed and, therefore, the relief of injunction ought to have been viewed looking to the conduct of the respondent as well. It is further contended that prior to this suit, there was already another suit filed by one Monaben, sister of Hasmukhbhai with respect to very same property i.e. City Survey No.1614 and said civil suit is also pending for adjudication and, therefore that being so the normal practice is to preserve the subject matter of the suit till its adjudication. Learned advocate Mr. Nanvati has further submitted that here is the case where status quo is granted from the month of September 2015 and the said status quo order is already in operation till date and, therefore, since the suit proceedings is of the year 2010 by maintaining status quo the suit proceedings are to be expedited, for which the petitioner has no objections. It has been submitted that the refusal of injunction in a situation like this would make the suit proceedings infructuous and as such, also the order of injunction deserves to be dealt with in aforesaid circumstances. The courts below have not appreciated the well sounded preposition of law that during the pendenty of the main proceedings the status quo has to be maintained. As a result of this there is a material irregularity in exercising jurisdiction, which requires this Court to exercise extraordinary jurisdiction to Page 8 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT preserve the subject matter from being damage to the detriment to the petitioner - plaintiff.
3.2 To substantiate this submissions, learned advocate Mr. Nanavati has drawn the attention of this Court to the decision in case of Ramdas (supra) and has submitted that original protection which has been granted by the Court on the aforesaid basis appears to be just and proper and same be continued till final disposal of the suit. No other submissions have been made.
4. To meet with the stand taken by learned advocate Mr.Nanavaty appearing for the petitioner learned senior counsel Mr. Shalin Mehta appearing for the contesting respondent has vehemently submitted that, this petition is essentially against two concurrent findings and that being so any perversity is shown or error material in nature in exercising jurisdiction is shown by the petitioner, then only the court may exercise the powers and under normal circumstances no jurisdiction can be exercised. Here is the case where both the courts below have properly exercised jurisdiction and assigned cogent reason which was specifically based upon the material available on record.
4.1 Learned senior counsel Mr. Mehta has further submitted that if a sequence of event be kept in mind then it clearly tantamount that original order of status quo, which has been passed on the Page 9 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT basis of no proper presentation of facts. Here is the case in which a suit came to be filed on 16.08.2012 along with injunction application at Exh.5. Thorough out the suit no ad interim relief was granted and after by parte hearing learned trial Judge has dismissed the Exh.5 Application vide order dated 10.04.2014. Even this order which was carried out further was also confirmed by the learned appellate Judge and appeal came to be decided against the petitioner vide order dated 16.07.2015 and, therefore here is the case in which for almost three years there was no interim protection in favour of the petitioner, but then upon presentation of the petitioner before this High Court and judgment was relied upon by the learned advocate pressed into service a decision, which has no bearing on the present controversy and the Court was persuaded to grant status quo which was not available to the petitioner right from August 2012 and, therefore the said ex parte relief was seriously opposed by the opponent No.2, which lead him to file Civil Application for vacating stay and as such, simply because ex parte relief for which there was no opportunity extended to the opponent to present their case, the status quo order admittedly cannot be continued till the final disposal of the suit.
4.2 It has further submitted that the bare reading of the stay order which was tried to be pressed into service is ex facie reflects the different facts and situation and, therefore in view of settled Page 10 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT legal position, said interim relief does not require to be extended any more and if ultimately the petitioner would succeed in the suit, appropriate molding of relief is also permissible at the time of final disposal of the suit, that being so petition since under Article 227 of the Constitution of India deserves to be dismissed. 4.3 Learned senior counsel Mr. Mehta has further submitted that the reasons which are assigned by the Court below are quite elaborate to the point and based the material available to the learned Judge on both count, since the material at this stage of the proceedings is perused at length, there is hardly any reason to disturb the special exercise of jurisdiction by both the courts below in respectful submission of learned senior counsel. It is further being submitted that it is settled principal of law that even remote prima facie case is established material irregularity order of injunction cannot be issued and, therefore, granting of status quo unmindfully of this element is not sustainable and for that purpose, request is made not to disturb the findings which has been arrived at by both the courts below. There is no error committed by the court below in any form and petition being devoid of merits deserves to be dismissed.
4.4 Learned senior counsel Mr. Mehta, learned senior counsel has further submitted that even the provision of Section 44 of the Transfer of Property Act has no application at all. On the contrary Page 11 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT the circumstance itself is indicating that here is the case in which each family member is passed on respective right after securing respective full consideration. It has been submitted that original sale document which is reflecting on page 203 of the compilation is registered sale transaction dated 15.07.2004 purchased by one Mr. Kantilal on 17.07.2004 and the said sale is by Hasmukhbhai. In the said documents there is no reference of Monaben who has filed separate suit which is said to have been pending and even assuming that the same is of no consequence since here is the categorical assertion coming out on record on the undisputed position that transfer of possession in favour of respondent No.2 by registered sale documents and have received sale consideration for their respective share and there was also an execution of Kabulat dastavej in which plaintiffs were party. It has further been clearly observed by the learned trial Judge that even there appears to be clear assertion of written statement at Exh.20 and thereafter defendant No.1 suddenly turn out and submitted an application by their written statement. Such amendment application is rejected as it is impermissible. Said order was carried out before this Court by way of Civil Revision Application but then over the period of time the said petition ultimately came tobe dismissed as no case was made out. That being so, there is hardly any justifiable reason is left for the petitioner to challenge the order, it has further been contended by the learned senior counsel that there was clear admission in the written statement produced by the defendant No.2 Page 12 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT at mark 27/11 which reflects transfer of share to defendant No.2 on execution of sale documents along with kabulat dastavej, which is not in dispute. Hence, in the background of aforesaid facts and circumstance when both the Courts below have minutely examined there is hardly any reason to disbelieve the conclusion arrived at by both the Courts. In any case, according to the learned senior counsel these petitions are basically petitions under Article 227 of the Constitution of India, same are not to be entertained against concurrent findings of facts and law on both extent even if another view is possible on the basis of same set of facts. When such is the position propounded by the series of decisions, there is hardly any reason to interfere with the orders. In any case, neither the decision delivered by the Apex Court which is tried to be pressed into service is applicable nor even Section 44 of the Transfer of Property Act is attracted as the subject matter is not dwelling house. That being so no right in favour of the petitioner to seek any equitable relief.
4.5 It has further been submitted that so far as criminal offence in which the charge sheet is filed, it is settled legal position that guilt of accused cannot be presumed unless and until order of conviction is passed and that the same has yet not been come. Therefore, said circumstance as against the specific admission and the record cannot be pressed into service by the petitioner to seek any equitable relief. It has also been submitted that each one has Page 13 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT passed on their respective share in favour of defendant No.2 after executing registered sale documents, passed on possession and secured the full consideration. That being so no injunction can be granted against registered sale deed and, therefore, no error is committed by both the courts below in passing impugned order hence petition being devoid of merits, deserves to be dismissed.
5. Learned advocate Mr. Nanavati in counter to this submissions has also submitted by referring page 193 of the review proceedings the status quo order is contending with regard to entry and therefore the present status quo which has been granted by the Court in the month of September 2015 deserves to be continue till final disposal of the suit and alternatively as requested even in case if Court not being specific in making out the case the operation of status quo order while disposing of petition be continued for reasonable period of 8 weeks.
6. Having heard learned advocates for respective sides and having gone through the material on record which has been pointed out before the Court, few of the circumstances which are not possible to be ignored by the Court and which are touching to the root of the the controversy are as under.
6.1 First of all a bare look at the impugned orders would make it clear that both the courts below have applied their mind in dealing Page 14 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT with the contentions and after analyzing the material on record, arrived at conclusion that no case is made out for granting any interim relief. The reasons which are assigned by the courts below are also cogent enough to support the conclusion as a result of this ex facie orders cannot be said to be perverse in any form nor suffers from any vize of any non application of mind. 6.2 It further transpires from record as well as contentions of written statement and the supportive documents that the land admeasuring 548.78 sq. mtr of survey No.1614 was in the joint name of plaintiff Mr. Hasmukbhai, Smt. Ramila ben, Maheshbhai and Piyushbhai. So these four family members are co-owners of the suit property and it has emerging from record that the plaintiff himself has divided the land by meets and bounds and out of that share of defendant No.1 to the extent of 137 sq. mtr was specifically for sale deed executed in favour of defendant No.1. Said portion of 137 sq. mtr of east side touching to the road and part of the property to the defendant No.1 as his share. Thus defendant No.1 became absolute owner to the extent of 137 sq. mtrs and has wested his rights and powers in favour of defendant No.2 by virtue of specific registered sale deed which is registered in the office of Sub Registrar, Sanand and also been mutated in revenue record by entry No.2289 on 11.04.2012 and defendant No.1 is the son of the plaintiff and defendant No.1 has admitted in the pleadings that he has received sale consideration from Page 15 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT defendant No.2 to the extent of Rs.3,21,000/-
6.3 It further appears from the record produced by defendant No.2 vide Exh. 27 the record or rights at mark 27/2 in which the name of four co-owners have been shown. Form No.8A containing of revenue record in which co - owner's name have been shown and except these four family members, no other names have been reflected in document at Mark 27/6. the revenue entry No.25788 dated 13.06.2012 was passed in the name of defendant No.2 and the same was mutated after complaint of Section 135 of Bombay Land Revenue Code and thereafter the revenue record so far 7/12 extract at mark 27/7, the defendants Nos. 2's name got mutated as possessor. It further appears that original plaintiff has field appeal No.172 of 2012 against said mutation entry in which the written statement which was filed by defendant No.2 produced at mark 27/11 is also indicating that the mutation took place after completion of specific procedure and the said process was not disputed by the original plaintiff.
6.4 So in substance the respective holdings of the land has been based on their registered transactions. Same is the case with other co - owners. It is undisputed that not only this sale documents which was executed by mother Ramilaben, who also passed on through registered sale deed dated 07.05.2012 and so is the case of brother Piyushbhai who has also sold his portion of 134 sq. mtr to Page 16 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT the wife of defendant No.2 Chetnaben vide registered sale documents dated 07.04.2012 and there appears to be a clear admission of defendant No.1 that possession of the suit property was handed over to the defendant No.2 and his wife and they all were received consideration of this portion of land. In addition there too, a Kabulant dastavej is also registered in favour of defendant No.1 and 2 by the co-owners. Those documents are also forming part of evidence at mark 27/12 which is also produced by defendant No.2 so these documents are indicating the registered transactions and alienation of possession upon the receipt of proper consideration to the extent of their respective shares. 6.5 It has further been reflecting from the order that learned Judge has also taken a note of a situation where after filing written statement at Exh.20, defendant No.1 want to turn around suddenly and filing an amendment application to amend the written statement to diametrically stand. Resultantly said application has been rejected on merit. It has been reported to the Court against said rejection, the petition came to be moved by the petitioner on earlier occasion being Special Civil Application No. 17493 of 2013 which also came to be dismissed and the petitioner was not permitted by examining the stand of the petitioner in the said petition in relation to the provisions contained in Order 7 Rule 17 of the Code of Civil Procedure the Court was not pleased to entertain and the petition came to be dismissed. It is further Page 17 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT evident from record that in view of all such written statement at Exh. 2 is become final and as such no case appears to be made out. In addition to the facts of Section 44 of the Transfer of Property Act and was pressed into service, but then looking at the said provision in a situation like this when the petitioner himself has partitioned the property, the effect of Section 44 of the Transfer of Property Act will not be attracted. Additionally, in view of the fact that property in question is not a dwelling house as canvassed by the parties. It further reflects that in the original registered deed also dated 15.07.2004 produced at page 203 there is no reference to the name of sister and as such, filing of a suit by her would not make any evidence so far as present background is concerned. when all circumstances are examined at length by the learned trial Judge while rejecting Exh.5 application and that order of rejection is carried out before the appellate forum wherein also learned district Judge has examined several documents, which were made part of the record, so as to examine that any error is committed by the trial court or not. At that time also learned district Judge has found that no case is made out for the petitioner for granting any relief. On the contrary specific conclusion which reflects examination of material is well in the context of decisions which have been cited before him and as such conclusion arrived at by the learned appellate Judge is also not perverse in any form or suffers from any vize of non application of mind, the Court deems it fit to incorporate the relevant paragraphs herein after; Page 18 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019
C/SCA/14434/2015 JUDGMENT "12. Upon such facts and documents on record the plaintiff is seeking relief of interim injunction which is equity in nature and entirely a discretion of the court. Under such circumstances the main grounds for appeal as advanced by the appellant that the order is against the law and not considered the facts and evidence on record. It is also advanced the ground that the panchanama prepared by the Court commissioner clearly shows that the possession is with the plaintiff but the same is not considered and has made great error in appreciation of law more particularly Section 44 of Transfer of property Act. Hence the order passed by the lower court is required to be interfered. 'Ib refute the facts and evidence of plaintiff the defendant No:2 have produced certain documentaries evidence vide Exh:27 in the suit. It is admitted facts that there is no dispute about suit property that it was was on the four names as alleged in the pleadings. But on perusal of Mark 27/12 Hetalben Maheshbhai herself and guardian of J ay and Dhruv has made acknowledged-deed in pursuance of registered sale-deed No: 2289/12 in favour of defendant No:2 namely Mukeshbhai Natavarlal in respect of land ad-measuring 137 Sthrs of Survey No:
1614 paiki-4. 0n perusal of Mark 27/13 it reveals that in respect of land ad-measuring 411 'Sq.Mtrs two sale-deed No: 2221/12 dt. 7-8- 2012 and 2289/12 (It. 11-4-2012 were executed by Piyushbhai, Maheshbhai and Ramilaben in favour of Chetanaben and Mukeshbhai Natavarbhai and in pursuance of these two sale-deed acknowledgegi-deed is executed by all three persons as stated above. It is also evident from these two deed that there was a partition amongst the four including the present plaintiff, defendant No:1 and remaining others two and on subsequent transaction it comes to the defendant No:2. But the said facts are suppressed by the plaintiff and averred it in different way that the transactions are not legal one and are fraudulent one. But so far as Mark 27/13 is concerned it is registered document wherein Piyushbhai Hasmukhbhai Patel, Maheshbhai Hasmukhbhai Patel and Ramilaben Hasmukhbhai Patel has duly signed the document after affixing their photographs. Not only as per Section 60 of Registration Act while registering the document the Registrar is giving certificate after compliance of Section 34, 35, 58 and 59.
13. Now so far as the possession of the suit property is concerned it would be necessary to refer acknowledged-deed Mark 27/13 wherein it is specifically stated that "sdr jmIn Amo tmamna hIssanI vhec`I 4[ cukel 0e Ane te mujb drekne co.mI. Leqe vhecayel 0e Ane te mujb ]pr kbjo Aavel 0e."
14. Thus, now it is clear from the pleadings and documentaries evidence that the co-owner have made transaction of their respective share and possession comes with the defendant No:2 in respect of suit property. For the sake of argument if it is believe that there is no partition and the alleged document is fraudulent and having no legal force though the facts remain that the defendant Nozl having 54 share in the suit property and according to the disputed sale-deed the defendant No:1 has executed sale- deed of land ad-measuring 137 Sq. Mtrs. Hence the question pose before the court that whether the purchaser can acquire title as if Page 19 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT the vendor in suit property. The answer obviously yes as-per Section 44 of the Transfer of Property Act. Section 44 relates to Transfer by one co-owner transfers his share of such property or any interest therein, the transferee acquires his share or such property or any interest..." But herein the case on hand as stated above there is a partition of suit property and the defendant acquire his part of land and he has sold the same to the defendant No:2. Under such factual matrix this court come a cross the decision reported in AIR 2008 Allahabad-page No: 100. Wherein the Hon'ble High Court has held under Section 31 of Specific Relief ActSuit for cancellation of sale deed property in dispute was joint property of plaintiff and his brothers,Share of defendant brother who had sold property only to extent of one-thirdin circumstances, entire sale-deed can not be judge null and void and sale-deed would certainly be effective to extent of one third share of defendant consequently sale-deed was held valid to extent of one- third share. Here in the case it is not the case of the plaintiff that the defendant No:1 having no share or he has no % share in the suit property and as early stated herein above, the disputed sale- deed is executed for the land ad-measuring 137 Sq.Mtrs. Hence considering the facts and provision of law and the case law laid down by the Hon'ble High Court plaintiff fails to prove three well known principles governing interim injunction which is absolute discretionary in nature. Hence the Ld. Lower court has rightly not exercising its discretion to allow the interim application for grant of injunction and dismissed the same.
15. Under the circumstances the appellant has cited decision AIR 2011 SC 103. I have gone through the cited decision wherein the question involved in respect of dwelling house wherein the husband has made agreement to sell of half of the property as the' remaining share belonging to wife-death of vendor and co-owner wife left 10 daughters of deceased couple and decree for specific performance granted by the court would result in hardship. But the facts of cited decision and case in hand are totally different one hence it is not helpful to the appellant. The appellant has also placed reliance AIR_2011 MP-172, AIR-2005 SC-3110, 1983 (2) GLR-961. I have gone through the all citations and the principles laid down in the cited decisions are binding to the present court but the facts of cited decisions and the case in hand are different one hence not applicable to the present case
16. On the other hand the LA. for the respondent have referred citations in support of his written as well as oral submission like LAWS(SC) 2006-5-25, 1996(1) GLH-179 I have gone through the cited decision but it is not applicable to the case on hand as the facts are different one. He has also placed reliance AIR 1986- 0rissA-74, 1984(1) GLR-386, AIR2008 502291, 2010 (1) GLH-151, 2009 (2) GLH-437. I have kept in mind the principles laid down in the cited decision while deciding this appeal which are applicable to the case on hand."
7. In view of above specific categorical findings well supported Page 20 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT by documentary evidence, this Court is of the opinion that such concurrent findings of fact in the absence of any perversity do not call for any interference in exercise of extraordinary jurisdiction. 7.1 The judgment which has been tried to be relief upon by the learned advocate for the petitioner in case of Ramdas (supra), the bare perusal of the same would clearly indicate that the same will not have any assistance to the petitioner.
7.2 With regard to this authority, which has been initially pressed into service by the learned advocate for the petitioner, if to be looked into closely, the same is not applicable in the background of present facts and circumstance. First of all the said decision which has been taken place is after full fledge trial of the main proceedings and pass on the evidence which has been laid during the course of trial. Whereas here the case is altogether different. Apart form this, the preposition of law which has been tried to be relied upon has no application, more particularly when already partition has taken place and individual share has been allotted and in those shares even divested by registered cash transactions and, therefore, it is not the case here that the property in question remain as a joint ownership property and such individual owner who became independent identity to execute the transactions. Page 75 onwards are the said documents one Mr. Maheshbhai has executed registered sale transactions on 11.04.2012 in favour of Page 21 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT defendant No.2 in respect to his portion to the extent of 137 sq. mtr. whereas Ramilaben has divested her property to defendant No.2 by sale deed dated 07.05.2012 whereas Piyush has transferred his share vide documents dated 07.04.2012 to the extent of his portion of 137 sq. mtr and as such these are the documents which are taken place undisputedly in favour of defendant No.2 and as such, there remains hardly any question of applying the ratio of said decision in which essentially the dispute was related to joint property which can be seen from para 14 and 15 as well.
8. In view of the above undisputed position and having examined the material on record by both the courts below the Court has also examined various documents at mark 27/13 and has considered the photocopy of the documents and the effect of Section 60 of the Registration Act is also considered and found that cirtificate is given only after completing Section 35, 50 and 59 of the Transfer of Property Act. Additionally there is clear assertion in the document itself that property has already been partitioned and therefore each one is having 137 sq. mtr and, therefore, the judgment which has been tried to be pressed into service is of no avail for the learned advocate for the petitioner.
9. Now in the background of aforesaid circumstances when apparently the material is not leaning in favour of present Page 22 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT petitioner, the Court is reminded off one of the preposition of law in reported decision in case of Dalpat Kumar and another vs. Prahlad Singh and others reported in AIR 1993 SC 276 in no uncertain terms the Apex Court has propounded that prima facie case and prima facie title cannot be confused and only particular case not case was granted against registered sale deed holder. The relevant extract of the said judgment in para 5 and 6 since relevant the Court deems it fit to reproduce herein after ;
"5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. 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. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject- matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.Page 23 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019
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6. Undoubtedly, in a suit seeking to set aside the decree, the subject-matter in the earlier suit, though became final, the Court would in an appropriate case grant ad interim injunction when the party seeks to set aside the decree on the ground of fraud pleaded in the suit or for want of jurisdiction in the Court which passed the decree. But the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injuries to either party and whether the plaintiff could be adequately compensated if injunction is refused. This case demonstrates (we are not expressing any opinion on the plea of fraud or their relative merits in the case or the validity of the decree impugned), suffice to state that the conduct of the respondent militates against the bona fides . At present there is a sale deed executed by the Court in favour of the first appellant. If ultimately the respondent succeeds at the trial. They can be adequately compensated by awarding damages for use and occupation from the date of dispossession till date of restitution. Repeatedly the Civil Court and the High Court refused injunction pending proceedings. For any acts of damage, if attempted to make, to the property, or done, appropriate direction could be taken in the suit. If any alienation is made it would be subject to doctrine of lis pendence under S. 52 of the Transfer of Property Act. The High Court without adverting to any of these material circumstances held that balance of convenience lies in favour of granting injunction with the following observations' "keeping in mind the history, various facts which have been brought to my notice, and looking to the balance of convenience and irreparable loss, I think it will be in the interest of justice to allow these appeals and grant temporary injunction that the appellants may not be dispossessed from the suit property". 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 facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success."
10. In the background of aforesaid circumstances, here is the case in which two concurrent findings of facts are emerging from Page 24 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT record against petitioner and the petitioner has invoked extraordinary jurisdiction of this Court under Article 227 of the Constitution of India and in view of preposition of law which has been laid down by the Apex Court in a decision reported in case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal,reported in (2013) 9 SCC 374. Since these observations with regard to exercise of jurisdiction either under Article 226 or 227 are relevant, the same are quoted hereinafter:
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01-07-
2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the Page 25 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of Page 26 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the Page 27 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019 C/SCA/14434/2015 JUDGMENT tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
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(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
11. In view of aforesaid preposition of law which has been laid down by the Honourable Apex Court, the Court is of the opinion that no case is made out by the petitioner to call for any interference. On the contrary it is settled principle of law that unless and until there is any material irregularity or perversity reflecting, no writ jurisdiction may be exercised. Otherwise the findings of facts which have been arrived at may not be disturbed. Accordingly, petition stands dismissed with no order as to costs.
12. Since this being a lead matter and the other three petitions are identically situated and not independently argued, this conclusion will govern rest of the petitions and same are also dismissed by this common judgment. Accordingly rule is discharged. Interim relief stands vacated.
13. However, while parting with the present order, a request is made by the learned advocate for the petitioner that since interim relief in the present proceedings is continued since long, the same may be continued for further period of 8 weeks, so as to allow the petitioner to assail the present order before the higher forum. To this request, learned senior counsel Mr. Mehta has some resistance. However, Court deems it fit to grant 4 weeks time to the petitioner to enable them to approach the higher forum. Page 29 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019
C/SCA/14434/2015 JUDGMENT Accordingly time is granted for 4 weeks with clear understanding that no further time will be granted after lapse of 4 weeks from today.
(A.J. SHASTRI, J) DRASHTI K. SHUKLA Page 30 of 30 Downloaded on : Wed Sep 25 00:44:17 IST 2019