Gujarat High Court
Natwarlal Ranchhoddas Patel vs Harendrabhai Somjibhai Patel on 27 April, 2021
Equivalent citations: AIR 2021 GUJARAT 110, AIRONLINE 2021 GUJ 419
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
C/AO/57/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 57 of 2018
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/APPEAL FROM ORDER NO. 57 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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NATWARLAL RANCHHODDAS PATEL & 11 other(s)
Versus
HARENDRABHAI SOMJIBHAI PATEL & 17 other(s)
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Appearance:
MR PERCY KAVINA, SR ADVOCATE with MR AB MUNSHI(1238) for
the Appellant(s) No. 1,10,11,12,2,3,4,5,6,7,8,9
MS KJ BRAHMBHATT(202) for the Respondent(s) No. 1,2
MS VARSHA BRAHMBHATT(3145) for the Respondent(s) No. 1,2
NOTICE SERVED BY DS(5) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,5,6,7,8,9
POOJA H BHARDWAJ(7844) for the Respondent(s) No. 1,2
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 3,4
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 27/04/2021
ORAL JUDGMENT
1. This appeal from order under O.43 R.1(r) of the Civil Page 1 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021 C/AO/57/2018 JUDGMENT Procedure Code, 1908 (CPC) is filed by the appellants assailing a common order dated 28.11.2017, passed by the learned 16th Additional Senior Civil Judge, Surat below exhs. 5 and 22 in Special Civil Suit No. 145 of 2014 by which, interim injunction applications filed by the original plaintiffs came to be allowed and the original defendants were directed to maintain the status quo till the final disposal of the suit qua the land situated at village:
Bamroli, Sub-district: Surat City - Majura, District: Surat, bearing revenue survey No. 70/2, block No. 105, T. P. Scheme No. 58 (Bamroli), Final Plot No. 6 admeasuring 5807 sq. mtrs. of old tenure land.
2. The appellants are the original defendant Nos. 17 to 28, whereas, the respondent Nos. 1 and 2 are the original plaintiffs and the respondent Nos. 3 to 18 are the original defendant Nos. 1 to 16. For the sake of convenience, the parties, herein after, would be referred to as per their original status.
3. Facts in nutshell of the case on hand are that the plaintiffs filed a Special Civil Suit No. 145 of 2014 before the learned Principal Senior Civil Judge, Surat against the defendants seeking prayers, essentially, against the defendant Nos. 1 and 2 therein, as per prayer paragraphs 11(1) to 11(6) in the suit. Prayer 11(7) came to be added later on. The claim of plaintiffs was with respect to undivided share admeasuring 967.83 sq. mtrs. of land only and not for the whole portion of land. The suit, principally, was filed for specific performance of the registered agreement to sell dated 16.01.2014 and for declaration and permanent injunction. The plaintiffs are the holders of agreement to sell for the land admeasuring 967.83 sq. mtrs. It is the case of the appellants that defendant Nos. 1 and 2 were the joint owners of Page 2 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021 C/AO/57/2018 JUDGMENT the entire property bearing revenue survey No. 70/2, Block No. 105 of mouje: Majura, Village: Bamroli, admeasuring 8296 sq. mtrs. The said land was a new tenure land, which was subsequently converted into old tenure land by the present appellants. In the said suit, the plaintiffs filed an application exh. 5 for interim injunction. That, during the pendency of the suit, the entire property was sold by the defendant Nos. 1 and 2 in favour of the defendant Nos. 3 to 28 (including the appellants) by a registered sale deed dated 10.03.2014 for the larger portion of land, excluding the disputed land admeasuring 967.83 sq. mtrs. The trial Court issued notice in application exh. 5, however, during the pendency of the suit, the defendant Nos. 1 and 2 sold the suit land in favour of the present appellants by a registered sale deed dated 03.06.2014, which pertains to only 967.83 sq. mtrs. of land. That, on 04.10.2014, the plaintiffs filed the application exh. 22 with a prayer to restrain the defendants from selling, transferring or dealing with the suit property in favour of any third party in respect of undivided share of 967.83 sq. mtrs. by virtue of registered sale deed dated 03.06.2014. As the defendant Nos. 1 and 2 had sold the land in question to the appellants, the plaintiffs filed an application exh. 27 for impleading the present appellants as party defendants Nos. 17 to 28 and for amending the suit as well as application exh. 5 in view of subsequent development, which came to be allowed by an order dated 07.01.2016.
3.1 After hearing the parties, the learned trial Court passed the impugned order dated 28.11.2017 below application exhs. 5 and 22 as referred to herein above, directing to maintain the status quo qua the entire chunk of land, being aggrieved of which, the appellants have preferred present appeal.
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4. Pursuant to notice issued by this Court on 19.03.2018, learned advocate Ms. K. J. Brahmbhatt appears for the respondent Nos. 1 and 2. The respondent Nos. 5 to 18, though duly served, have chosen not to appear before the Court, whereas, the respondent Nos. 3 and 4 have remained unserved as refused and thereby, they are treated to be served.
5. Admit.
6. Learned senior advocate Shri Percy Kavina, learned counsel with Mr. A. B. Munshi, learned advocate for the appellants has vehemently and fervently argued that in the present case, the case of the plaintiffs (respondent Nos. 1 and 2 herein) in the suit in question is that the defendant Nos. 1 and 2 has executed an agreement to sell on 27.04.2012 in favour of the original plaintiffs (respondent Nos. 1 and 2 herein) for a land situated at village:
Bamroli, Sub-district: Surat City - Majura, District: Surat, bearing revenue survey No. 70/2, block No. 105, T. P. Scheme No. 58 (Bamroli), Final Plot No. 6, admeasuring 967.83 sq. mtrs. only and no dispute was taken qua the whole chunk of land, however, the learned trial Judge, by way of impugned order, has directed status quo to be maintained qua the entire land, which is illegal, arbitrary and perverse and the plaintiffs (respondent Nos. 1 and 2 herein) have availed the status quo qua the entire land mala fidely. It is submitted that defendant Nos. 17 to 28 (appellants herein) are the registered sale deed holder of the land in question as the defendant Nos. 1 and 2 has sold the suit land in favour of the present appellants by way of a registered sale deed dated 03.06.2014. The learned senior counsel for the appellants submitted that nobody can get the benefit of his own wrong.Page 4 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021
C/AO/57/2018 JUDGMENT 6.1 It is further submitted by the learned senior counsel for the appellants - original defendant Nos. 17 to 28 that when there is an agreement to sell for a portion of land out of the whole chunk, the learned trial Judge ought not to have granted status quo qua the entire land. It is further submitted that the plaintiffs were required to file suit for the entire land either, which is not the case here and accordingly, the trial Court could not have travelled beyond what is prayed in the suit.
6.2 The learned senior counsel for the appellants - original defendant Nos. 17 to 28 submitted that there was a notarized agreement to sell dated 17.02.2012 between appellant Nos. 1 to 7 and respondent Nos. 3 to 18 and one Chandrakantbhai, which is prior in point of time and hence, relying upon a decision in Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited and others, 2013 (5) SCC 397, he submitted that in fact, there is a prior agreement to sell in favour of the appellants.
6.3 Making such submissions, he urged that present appeal may be allowed and the impugned order may be set aside.
7. Per contra, learned advocate Ms. K. J. Brahmbhatt for the respondent Nos. 1 and 2 - original plaintiffs, while vehemently opposing the present appeal, argued that defendant Nos. 1 and 2 (respondent Nos. 3 and 4 herein) had agreed to sale their undivided share admeasuring 967.83 sq. mtrs. in the land in question to the plaintiffs (respondent Nos. 1 and 2 herein) for which, a notarized agreement to sell was executed on 27.04.2012 and duly registered on 16.01.2014 in favour of the plaintiffs (respondent Nos. 1 and 2 herein). It is submitted that thereafter, Page 5 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021 C/AO/57/2018 JUDGMENT the defendant Nos. 1 and 2 (respondent Nos. 3 and 4 herein) retracted and did not execute the sale deed in favour of the plaintiffs (respondent Nos. 1 and 2 herein) and hence, the plaintiffs (respondent Nos. 1 and 2 herein) are constrained to file the suit in question in which, the present appellants were joined later on, after coming to know about execution of sale deed in favour the appellants (defendant Nos. 7 and 28) qua the suit land. She submitted that after hearing both the sides, the learned trial Court has granted status quo qua the entire property. It is further submitted that so far notarized agreement to sell dated 17.02.2012 between appellant Nos. 1 to 7 and respondent Nos. 3 to 18 and one Chandrakantbhai is concerned, the same may not be taken into consideration as the same is not produced in the trial Court. It is further submitted that there is no whisper about execution of said notarized agreement to sell dated 17.02.2012 in subsequent agreement dated 30.12.2013, notarized on 31.12.2003 for entire land as well as registered sale deed dated 10.03.2014 (registered on 21.03.2014) for land admeasuring 4839.16 sq. mtrs. and sale deed dated 14.03.2014 (registered on 03.06.2014) for land admeasuring 967.83 sq. mtrs.
She further submitted that the plaintiffs (respondent Nos. 1 and 2 herein) filed the suit on 13.03.2014 and the respondent Nos. 3 to 18 (defendant Nos. 1 and 16) came to be served on 19.03.2014 and thereafter, the sale deed for the suit land came to be registered on 03.06.2014. Thus, though the defendant Nos. 1 and 2 (respondent Nos. 3 and 4 herein) were aware about filing of suit, they executed a registered sale deed. Accordingly, she submitted that considering the conduct of the appellants (original defendant Nos. 17 to 28) and respondent Nos. 3 to 18 (original defendant Nos. 1 to 16), the impugned order may not be interfered with as other wise the respondents may further create Page 6 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021 C/AO/57/2018 JUDGMENT right in the land resulting into frustration of right of the respondent Nos. 1 and 2 (original plaintiffs) and may lead to multiplicity of proceedings.
7.1 The learned advocate for the respondent Nos. 1 and 2 further submitted that the property in question is ancestral undivided property and till date, partition between the original owners i.e. respondent Nos. 3 to 18 (original defendant Nos. 1 to
16) is not taken place and hence, the impugned order deserves to be sustained.
7.2 Thus, making above submissions, she urged that this appeal merits no consideration and may be dismissed.
8. Regard being had to the submissions advanced by the learned advocates for the respective parties and considering the papers available on record, facts as emerge, the appellants are the original defendants Nos. 17 to 28, who came to be joined in the suit in question subsequently by virtue of an order below exh. 27 dated 07.01.2016. Further, the appellants are stated to be the purchasers of the land in question for which, a registered sale deed has been executed 03.06.2014. It is also stated that the appellants have also purchased the rest property (other than 967.83 sq. mtrs.), sold by the original defendant Nos. 1 and 2 by a registered sale deed dated 10.03.2014. Thus, in short, the appellants are the purchasers of the entire chunk of land. The respondent Nos. 1 and 2 are the original plaintiffs, who have filed the suit in question for specific performance, declaration and permanent injunction on the basis that the original defendant Nos. 1 and 2 have executed a registered agreement to sell dated 16.01.2014 in their favour.
Page 7 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021C/AO/57/2018 JUDGMENT 8.1 At this juncture, it is pertinent to note that, indisputably, the
suit property is an ancestral property and partition of the same has yet not been effected to, neither any proceedings appears to have been pending in any Court of law.
8.2 In the aforesaid facts and circumstances of the case, there appears to be two stakeholders of the property in question viz. the present appellants as well as the respondent Nos. 1 and 2 (original plaintiffs), one by virtue of a registered agreement to sell and another by virtue of a registered sale deed, as referred to herein above. It is also a claim of the appellants that they have purchased the entire chunk of land by way of two different registered sale deeds.
8.3 In the above backdrop, it would be apt to refer to section 52 of the Transfer of Property Act, 1882 is relevant, which reads thus:
"52. Transfer of property pending suit relating thereto.--During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government 5***] of 6[any] suit or proceeding 7 [which is not collusive and] in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
[Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete Page 8 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021 C/AO/57/2018 JUDGMENT satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.] 8.4 A perusal of the record, prima facie, reveals that the suit in question was filed on 13.03.2014 and the defendant Nos. 1 to 16 (respondent Nos. 3 to 18 herein) came to be served on 19.03.2014, whereas, the sale deed in favour of the appellants appears to have been executed on 03.06.2014 qua the suit land. Thus, it is crystal clear that the suit property is transferred pendent lite, and against the doctrine of lis pendens. The Court is conscious of the settled legal position that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not, therefore, render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit.
8.5 As observed earlier, it is the indisputable fact that the entire property is undivided and partition between the original owners appears to have yet not taken place and in the circumstances, in the considered opinion of this Court, and as observed by the learned trial Judge, if the status quo qua the entire property is not granted, the original plaintiffs might have irreparable loss. Further, it is also a fact that an aggrieved party of the outcome of the suit, can very well take recourse to the remedy available to it under the law, and therefore, the present appeal merits no consideration.Page 9 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021
C/AO/57/2018 JUDGMENT 8.6 So far as agreement to sell dated 17.02.2012, as drew attention by the learned senior counsel for the appellants, is concerned, a perusal of the record reveals no such contention appears to have been taken by the appellants before the trial Court and that, there is not a whisper in the impugned order as regards the same. The Court has gone through the decision in Thomson Press (India) Limited (supra) as relied by the learned senior counsel for the appellants, Head Notes 'B' and 'D' of the same reads thus:
"B. Specific Relief Act, 1963 - S. 19(b) - Specific performance of prior agreement to sell/contract for sale (CFS) against purchaser pendente lite - When available to buyer under prior CFS - Explained - Held, sale of immovable property is immune from specific performance of prior CFS only if transferee has acquired title for valuable consideration, in good faith and without notice of prior CFS
- In instant case, appellant-transferee pendente lite, held, is not protected against specific performance of prior CFS at behest of R-1 plaintiff buyer thereunder as transfer in favour of appellant though for valuable consideration, was not in good faith nor was it without notice of said prior CFS
- Transfer of Property Act, 1882 - S. 40 Paras 2 and 3, Ss. 3 and 54 - Trusts Act, 1882, S. 91."
"D. Transfer of Property Act, 1882 - S. 52 - Doctrine of lis pendens - What is - Transfer pendent lite - Validity of, and effect of S. 52 - Doctrine of lis pendens is based on ground that it is necessary for administration of justice that decision of a court in a suit should be binding not only on litigating parties but on those who derive title pendente lite
- S. 52 however does not annul pendente lite conveyance or transfer or make it void but renders it subservient to rights of parties to a litigation as may be eventually determined by court - Thus, transfer made in favour of subsequent purchaser is subject to riders and restraint orders passed by court, if any."
8.7 In instant case, the suit property has been transferred in favour of the appellants pendent lite. Further, the same is undivided property of the original owners, and partition has yet to Page 10 of 12 Downloaded on : Tue Apr 27 21:05:13 IST 2021 C/AO/57/2018 JUDGMENT take place and in the circumstances, the learned trial Court has rightly taken such a view. Further, no such plea qua execution of prior agreement to sell, than that in favour of the plaintiffs, appears to have been taken before the concerned Court below nor any observations qua that reflect in the impugned order. Further, as held by the Hon'ble Apex Court in the aforesaid decision, the doctrine of lis pendens is based on ground that it is necessary for administration of justice that decision of a Court in a suit should be binding not only on litigating parties but on those who derive title pendente lite. Section 52, however, does not annul pendente lite conveyance or transfer or make it void but renders it subservient to the rights of parties to a litigation as may be eventually determined by Court. Thus, transfer made in favour of subsequent purchaser is subject to riders and restraint orders passed by Court, if any. Hence, considering the facts and circumstances of the case on hand, the aforesaid decision would be of no avail to the appellants.
9. In view of the aforesaid discussions and observations, present appeal fails and is dismissed accordingly. Notice of admission is discharged with no order as to costs.
9.1 However, since the suit is of 2014, it is expected that the trial Court concerned shall make all endeavour to dispose of the suit as early as possible and the parties to the suit, shall cooperate in the trial and shall not ask for any unnecessary adjournments.
9.2 It goes without saying that the trial Court shall proceed with the suit on its own merits, in accordance with law.
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9.3 In view of main appeal is dismissed, civil application
therein, also stands dismissed.
[ A. C. Joshi, J. ]
hiren
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