Gujarat High Court
Ashokbhai vs Heirs on 9 February, 2011
Author: K.S.Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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AO/38/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 38 of 2011
with
CIVIL
APPLICATION NO. 1191 OF
2011
=========================================================
ASHOKBHAI
OCHHALAL PARIKH - Appellant(s)
Versus
HEIRS
OF DECD.RATIBHAI ARDESAR FITTEER - Respondent(s)
=========================================================
Appearance :
MR
MEHUL S SHAH for
Appellant(s) : 1,MR SURESH M SHAH for Appellant(s) : 1,
None for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/02/2011
ORAL
ORDER
1. This petition is directed against the judgment and order passed by Principal Senior Civil Judge in Special Civil Suit No. 50 of 2009 below Exh. 5 which came to be dismissed.
2. The facts of case are that the present petitioner appellant original plaintiff entered into an Banakhat which was notarised before a Notary. The said deed was not registered and on the basis of the banakhat filed a suit praying for execution of that Banakhat was filed application exh. 5 was also filed praying for interim injunction. The trial court has observed that the proceedings are pending before the Revenue authority against the tenant. Hence, the application Exh. 5 came to be rejected against which the present Appeal has been filed. Hence, the learned Advocate for the appellant.
3. The trial court has considered the matter in greater details while dismissing the injunction application. Para 7, and 8 thereof reads as under :
7. "
Considering Gulbhai and Ratibhai are sisters as well as legal heirs of their said deceased parents viz Ardeshar and Banubhai. Notarised Banakhat produced at Exh. 4.4 on dated 5th April 1988 is admittedly executed with these two ladies by the plaintiff. Thus the execution of the notarised banakhat is admitted by the other side. Now, the fact emerges clear on record that the suit land which is agreed to be sold to the plaintiff is of New Tenure Land with the restrictions for its slae as prescribed by the Bombay Tenancy and Agricultural Lands Act. Moreover, Bai Zaver after the death of her husband, Shiva Chatur, is the tenant in the suit land. Revenue record as discussed above contains the name of the original owners as well as that of the tenant. Satakhat or Banakhat at Mark 4/4 also contains the relevant conditions for execution of Sale Deed in favour of the plaintiff. Both the said daughters of the original owner of the suit land, deceased Ardeshar viz Gulbai and Ratibhai have already been died. Thereupon, the heir of deceased Ratibhai Ardeshar Fitter, Behram Shapuji Khandadiya, I.e the present defendant has become the owner of the suit land. Defendant is represented through his Power of Attorney Holder, Harishbhai Shashikant Patel, in the present suit and this Power of Attorney Holder says not for the execution of sale deed. An exparte status quo order has also been granted in favour of the plaintiff by the Court as aforesaid. Besides, this documentary evidence through List of Documents at Exh. 38 in support of the contention raised by the defendant that the land agreed to be sold under the Notarised Banakhat at Mark 4/4 is New tenure Land with certain restrictions for its sale imposed under relevant law. The plaintiff has produced similar type of documentary evidence through list of documents Exh. 39 which shows that writ petition being Special Civil Application No. 254 of 1976 dated 10th January 1979 Special Civil Application NO. 29259/2007 and Revision Application No. 214/2009 dated 26th June 2009 etc., are pending in the Hon'ble High Court of Gujarat as well as Gujarat Revenue Tribunal, list of documents produced by the defendant's side also shows that the suit land is of New Tenure Land with tenancy rights therein. All these facts prove that the suit land is covered under the Bombay Tenancy and Agricultural Lands Act. This Court for the purpose of deciding the subject matter has also considered the written arguments of the plaintiff's side at Exh 81 and at Exh. 91. At the same time, this Court has also considered the written arguments of the defendant's side at Exh. 91 & Exh. 92, wherein , it is submitted that the plaintiff is not the Owner of the suit and by virtue of Tenancy Act, Bai Zaver, widown fo Shiva Chatur is the protected tenant from 1st April 1957 and the purchase price is fixed with the issuance of the intimation for tendering purchase price at Mark 36/6. The plaintiff interest is not created in the suit land and before the alleged banakhat Bai Zaver's name is in revenue record as she is adjudged as the tenant by order dated 26th December 1985 in Tenancy Case No. 5522/1984. It is further submitted that the Banakhat Holder has no right, title or interest to file any proceedings, Review Application and so for that purpose, the defendant have produced xerox copy of S. 54 of Transfer of Property Act to show that no interest is created by an agreement towards sale. So, the plaintiff has no locus standi to prefer Review Application which is filed after filing the present suit. This is done to create evidence and it is irrelevant for the suit of specific performance and that circumstance is created by the plaintiff himself, cannot help in deciding the present Application Exh. 5 under Order 39 Rules 1-2 of CPC. Date of the present suit is 28th January, 2009 whereas, Revision Application No. 241/2009 is filed before Gujarat Revenue Tribunal after filing of the present suit by the plaintiff I.e on 26th June 2009.
8. For the reasons recorded above, this Court holds that prima facie it appears that the plaintiff cannot claim any legal right, title or interest in the suit land on the strength of the Notarised Banakhat produced at Mark 4/4 under section 54 of Transfer of Property Act as it prescribes that merely the execution of an Agreement to sale, does not create any right to sell the property. In view of the above findings, the ex parte order to maintain status quo with regard to the title as well as possession of the suit property does need to be continued for a further time. Consequently this Court holds that the plaintiff miserably fails in satisfying the 3 basis vital ingredients of prima facie case, irreparable loss and balance of convenience in his favour, and, the exparte order to maintain status quo earlier granted, requires to be vacated with the dismissal of the present application Exh. 5 with costs.
9. Thus, as found by the Trial Court the petitioner has no locus standi to prefer Review Application which is filed after filing the present suit. The prima facie case found by the trial court is that the petitioner cannot claim any legal right, title or interest int eh suit land on the strength of the Notarised Banakhat produced at Mark 4/4 under section 54 of the Transfer of Property Act. It is well settled that merely execution of an agreement to sell does not create any right to sell the property. Further, the petitioner has failed to make out a prima facie case, irreparable loss and balance of convenience. Learned advocate for the petitioner is not able to point out anything from the record to take a view of the matter. I am in complete agreement with the reasonings adopted and findings arrived at by the trial court. Hence the Appeal is dismissed.
10. Since, the main Appeal is dismissed, the above Civil Application would not survive and is accordingly disposed of.
(K.S.Jhaveri,J.) mary// Top