Gujarat High Court
Kantibhai Mohanbhai Patel vs Babubhai Mohanbhai Patel on 5 August, 2024
NEUTRAL CITATION
C/AO/266/2018 ORDER DATED: 05/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 266 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/APPEAL FROM ORDER NO. 266 of 2018
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KANTIBHAI MOHANBHAI PATEL
Versus
BABUBHAI MOHANBHAI PATEL & ORS.
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Appearance:
MR JIGAR P RAVAL(2008) for the Appellant(s) No. 1
DEV D PATEL(8264) for the Respondent(s) No. 2
MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 6,7,8,9
MR DHAVAL DAVE, SR. ADVOCATE WITH MR JIGAR M PATEL(3841) for
the Respondent(s) No. 3
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2.1,2.2,2.3,2.4,2.5,2.6,5
RAHUL S SHAH(9701) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/08/2024
ORAL ORDER
1. Heard learned advocates for the respective parties.
2. Present Appeal from Order under Order 43 Rule 1(r) of CPC is filed challenging order dated 06.09.2018 passed below Exh.5 in Special Civil Suit No.59 of 2017, whereby, injunction application under Order 39 Rule 1 & 2 read with section 151 of CPC has been rejected with further direction that transfer of suit properties described in para 3(a) to (e) shall be subject to principle of lis pendence.
3. Being aggrieved by the order dated 06.09.2018 passed in injunction application, the plaintiff has filed present Appeal from Order.
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4. Facts leading to filing of this Appeal from Order are as under :-
4.1. The appellant filed Special Civil Suit No.59 of 2017 against respondents for decree of declaration and permanent injunction and for cancellation of gift deed, sale deed and agreement to sale, power of attorney and decree. The appellant also moved application Exh.5 praying temporary injunction restraining present defendants from transferring and /or alienating and from creating any third party right over the suit property.
Learned Trial Court vide order dated 06.09.2018 rejected the said application. Hence, present Appeal from Order.
5. Having heard learned advocates for both the sides, firstly, it is required to note relief claimed by the plaintiff in the suit (it is in Gujarati, for understanding it is translated in English), which is as under :-
"(A) Be please to pass such decree in favour of Plaintiff against the Defendent that said general power of Atorney executed by Defendent No. 1 in the name of me i.e. plaintiff, of the land measuring 11459 sq. mtr. of Block No. 93 paiki 2 of Nana Varachha which is in possession of the plaintiff and which is registered vide serial number 1247 dated 07.12.13 in Surat Sub-Registrar Office, as illegal, without free consent, non est and nullity, void and not binding on the Plaintiff.
(B) Be please to pass such decree in favour of Plaintiff against the Defendent that said gift deed executed by Defendent No. 1, who is the said power of attorney of the plaintiff, of the land measuring 11459 sq. mtr out of Block No. 93 paiki 2 of Nana Varachha which in possession of the plaintiff and which is registered vide serial number 415 dated 13.5.14 (dated 19.5.14) in Surat Page 2 of 13 Downloaded on : Thu Aug 08 21:00:36 IST 2024 NEUTRAL CITATION C/AO/266/2018 ORDER DATED: 05/08/2024 undefined Sub-Registrar Office, as illegal, without free consent, null and void and not binding on the Plaintiff.
(C) Be please to pass such decree in favour of Plaintiff against the Defendent declaring that said sale deed registered vide serial number 11766 dated 05.11.15 in Surat Sub-Registrar Office through which the Defendent No. 1, through the rights of the said gift deed, sold to Defendent No. 2, land of final plot no. 55/2 admeasuring 1744 sq.mtr out of Final Plot No. 55/1 and Final Plot No. 55/2 of the land of Nana Varachha Block No. 93 paiki 2 admeasuring 11459 sq. mtr under the possession of the plaintiff, which was included in T.P.Scheme No. 38, Nana Varachha, as illegal, without free consent, null and void and not binding on the Plaintiff.
(D) Out of Block No. 93 paiki 2 of Nana Varachha in possession of the plaintiff, the agreement for sale dated 27.8.13 of the Defendent no. 5 of the land with an area of 11459 sq mtr is illegal, without free consent, non-
substitutional. After canceling the same, be pleased to pass a decree in favour of the plaintiff against the defendents declaring that it is not acceptable and binding to the plaintiff.
(E) Be please to pass such decree in favour of Plaintiff against the Defendent that the Defendent No. 1, who is the said general power of attorney of the plaintiff, of the land measuring 12039 sq. mtr. out of Block No. 190 of moje Sanniya Hemad which in possession of the plaintiff and which is registered vide serial number 740 dated 07.12.13 in Surat Sub-Registrar Office, as illegal, without free consent, null and void and not binding on the Plaintiff.
(F) Be please to pass such decree in favour of Plaintiff against the defendent that said gift deed executed by Defendent No. 1, who is the said power of attorney of the plaintiff, of the land measuring 12039 sq. mtr out of Block No. 190 of moje Sanniya Hemad which in possession of the plaintiff and which is registered vide serial number 348 dated 9.5.14 (dated 19.5.14) in Surat Sub-Registrar Office, as illegal, without free consent, null and void and not binding on the Plaintiff.
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possession of the plaintiff, the agreement for sale dated 11.3.13 of the Defendent no. 3 of the land is illegal, without free consent, non-substitutional. After canceling the same, be pleased to pass a decree in favour of the plaintiff against the defendents declaring that it is not acceptable and binding to the plaintiff.
(H) As the Defendent no. 3 got passed the decree in Special Civil Suit No. 260/15 in the Civil Court, Surat for specific execution of deed of exchange dated 11.3.13 for Block No. 204 of Moje Sanniya Hemad in possession of the plaintiff by fraud as per the reasons stated above, the said decree is illegal, without free consent. After canceling the same, be pleased to pass a decree in favour of the plaintiff against the defendents declaring that it is not acceptable and binding to the plaintiff.
(I) The land bearing Revenue Survey No.883 paiki located in the area behind the Kabir Wadi, Katargam, Surat City - 4 was registered vide Entry No.1881 as the same was included in the City Survey Ward Katargam. Its area as per the city survey record is 5565 Sq.m. As the said land was included in the T.P. Scheme No.4 (Ashwinikumar Nawagam), 2367.50 sq.mtr. land, which is the half part of the land admeasuring 4735 sq.mtr of the Final Plot No.95, has been purchased by the plaintiff from the original owner Sagar Dying & Printing Mills Pvt. Ltd. by an agreement for sale dated 15/08/10. The Defendent No.3 got executed the transfer rights of the said agreement for sale by the so-called agreement for sale dated 20/03/13. The said agreement for sale is without free consent and consideration of the plaintiff and it is unlawful, non est and nullity. After canceling the same, be pleased to pass a decree in favour of the plaintiff against the defendents declaring that it is not acceptable and binding to the plaintiff.
(J) The land bearing Revenue Survey No.883 paiki located in the area behind the Kabir Wadi, Katargam, Surat City - 4 was registered vide Entry No.1881 as the Page 4 of 13 Downloaded on : Thu Aug 08 21:00:36 IST 2024 NEUTRAL CITATION C/AO/266/2018 ORDER DATED: 05/08/2024 undefined same was included in the City Survey Ward Katargam. Its area as per the city survey record is 5565 Sq.m. As the said land was included in the T.P. Scheme No.4 (Ashwinikumar Nawagam), its Final Plot No.95. As the said sale deeds of the Sub-Plot No.95/C in the half of its eastern side land out of 4735 Sq.m area are unlawful, non est, nullity and void, be pleased to pass a decree in favour of the plaintiff against the defendents declaring that it is not binding to the plaintiff after canceling the same.
Detail of the Sale Deed Date Defendent
Property No. No.
Sub Final Plot 10219 16/5/14 6
No.95/C-1 (of
eastern side)
207.05 Sq.m.
Sub Final Plot 10221 16/5/14 7
No.95/C-2 (of
eastern side)
207.05 Sq.m.
Sub Final Plot 10223 16/5/14 8
No.95/C-3 (of
eastern side)
207.05 Sq.m.
Sub Final Plot 10225 16/5/14 9
No.95/C-4 (of
eastern side) 215
Sq.m.
(K) Be pleased to pass a decree in favour of the
plaintiff against the defendants declaring that the defendants in this case are not entitled to transfer, assign, sell, mortgage, gift the suit property mentioned in para (3) of the suit to any third person or organization or to execute or get executed any documents or to hand over the possession of the said property to any third person or organization by transferring or assigning or to do any act which may change the identity of the property.
(L) Be pleased to pass a permanent injunction in Page 5 of 13 Downloaded on : Thu Aug 08 21:00:36 IST 2024 NEUTRAL CITATION C/AO/266/2018 ORDER DATED: 05/08/2024 undefined
favor of the plaintiff against the defendants that no transfer, assign, sale, mortgage, gift or charge, lien or otherwise of any kind whatsoever shall be made by the defendants or their servant, agent to any other third person or organization in respect of the suit property mentioned in para (3) of the suit and defendants shall not transfer and assign the possession of the properties to any other third person or organization, and they shall not carry out any act that change the identity of the suit property such as development or construction.
(M) Be pleased to pass the order that the defendants in this case shall hand over to the plaintiff the peaceful and actual possession of the suit properties mentioned in para (3) of the suit. Alternatively, if the defendants refuse to hand over possession, be pleased to appoint a court commissioner with police protection and order the court commissioner to take possession of the properties from the defendants and hand over the same to the plaintiff on the spot.
(N) Be pleased to grant all the possible reliefs regarding the suit.
(O) Be pleased to pass an order granting entire costs of this suit from the defendents to the plaintiff."
6. In injunction application, it is prayed that defendants be restrained from changing hands or title of the immovable properties stated in para 3 of the plaint.
7. Essentially, it is dispute between two brothers, plaintiff and defendant no.1, whereby, plaintiff claims that registered documents or agreement to sell executed in favour of defendant no.1 or other party on the basis of power of attorney or other registered documents are non-est as they are executed under fraud and coercion.
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8. Learned advocate Mr.Jigar Raval for the appellant submits that learned Trial Court has committed serious error in not granting order of status-quo in view of aspect that subject matter of the suit is immovable properties and if they change hands or title during pendency of the suit, it will frustrate very cause of action of the plaintiff's right and plaintiff would require to join end number of parties in array. It is further submitted that it is highly unbelievable that defendant no.1 being brother of the plaintiff has been given immovable properties by way of gift deed. Properties which is valuing crores of ruppes, cannot be given in gift deed by the plaintiff, more particularly, when defendant no.1 is more richer than plaintiff. Therefore, he would submit that documents though are registered, prima facie raise doubt. It is further submitted that all these aspects can be decided during trial of the suit, yet in order to survive cause of action, plaintiff's injunction application is required to be granted and both the parties may be directed to maintain status-quo in regard to immovable properties.
8.1. Upon above submissions, it is submitted to allow this Appeal from Order.
9. On behalf of the defendants of the suit, learned advocate Mr.Mehul Sharad Shah led arguments along with learned advocate Mr.D.B.Kakkad, learned advocate Mr.Dev Patel, learned advocate Mr.Rahul Shah and learned Senior Advocate Mr.Dhaval Dave along with learned advocate Mr.Jigar Patel.
10. Learned advocate Mr.Mehul Sharad Shah for defendant no.1 submitted that all the documents are registered documents.
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He would submit that whenever documents were registered, Sub Registrar Office had issued notice to the plaintiff as per provisions of Registration Act and plaintiff never objected in the registration of documents, rather has confirmed registration of documents, which prima facie indicates that no fraud has ever taken place in execution of documents. It is submitted that in some of the properties, NA order is passed by the Collector in knowledge of the plaintiff and interest of third party is created and when suit was filed, construction was going on, on this properties. It is submitted that even otherwise, interest of plaintiff, if any, involved in the suit is protected by the learned Trial Court while passing order putting clips of principle of lis pendence upon transfer of disputed property. It is submitted that plaintiff has also registered his claim before the Sub Registrar Officer under section 52(A) of the Transfer of Property Act, which is suffice to attract principle of lis pendence and as such there is no reason for the plaintiff to raise any apprehension that his right involved in the suit property would be jeopardize if no status-quo order is passed.
11. Learned Senior Advocate Mr.Dhaval Dave appearing for respondent no.3 after adopting arguments of learned advocate Mr.Shah would submit that all the documents are registered and they being correct documents. The defendants who are in possession of particular piece of immovable property pursuant to execution of registered documents cannot be prevented from taking or enjoying fruits of immovable properties till competent Court cancels registered documents. It is submitted that in view of this, there is no substance in present Appeal from Order and therefore, he submits to dismiss Appeal from Order.
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12. Other learned advocates appearing for the respective respondents after adopting above arguments would submit that if plaintiff can survive without any injunction for more than eight years in the suit, there is no reason to grant injunction or status-quo order after eight years. Therefore, they submit not to entertain present Appeal from Order.
13. I have heard learned advocates for the parties and paid anxious thought to the impugned order as well as other records.
14. This Court in the case of Matrix Telecom Private Limited Versus Matrix Cellular Services Private Limited [2011 (3) GLR 1951] held in para 6. and 6.1 as under :-
"6. Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-plaintiff has made out a prima facie case or not for grant of interim injunction.
6.1 It is required to be noted that it is well settled law that the Appellate Court may 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. The 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 the court was reasonably possible on the Page 9 of 13 Downloaded on : Thu Aug 08 21:00:36 IST 2024 NEUTRAL CITATION C/AO/266/2018 ORDER DATED: 05/08/2024 undefined 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."
15. Yet in another judgment in the case of Jasoda Indralal Vadhva Versus Hemendrabhai Kakulal Vyas [2009 (4) GLR 3213], this Court has observed in para 13 as under :-
"13. Granting of injunction is a matter of discretion. Balance of convenience and irreparable injury are triable issues and are required to be examined and positively found. It is settled law that while hearing appeal against discretionary exercise of powers by the trial Judge, while deciding the application under Order 39, Rule 1 and 2 of C.P.C. the appellate Court is not expected to interfere with the discretion, unless it is shown that power has been exercised arbitrarily, capriciously or in perversity and against the settled principles of law. Appellate Court is not expected to reassess the material and to reach a conclusion different than the one reached by the Court below. If the one reached by the Court was reasonably a plausible view, appellate Court would normally not be justified in interfering with the order. But, if the exercise of discretion in appeal is only on the ground that the matter has not received consideration at trial Court stage, then it would have come to a different conclusion and the appellate Court can interfere with the exercise of discretion of trial Court provided it is satisfied about prima facie strong case, balance of convenience and extreme urgency."
16. Prior to above, in case of Wander Limited Versus Antox India Private Limited reported in 1990 (Supp1) SCC 727, the Hon'ble Apex Court has observed as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal Page 10 of 13 Downloaded on : Thu Aug 08 21:00:36 IST 2024 NEUTRAL CITATION C/AO/266/2018 ORDER DATED: 05/08/2024 undefined right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "
...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience lies."
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."
17. Ordinarily, this Court shall not palm its own view upon discretionary view taken by the learned Trial Court at first instance. Even if there is different view has been taken by the learned Trial Court, it cannot be substituted by view taken by learned Appellate Court under discretionary jurisdiction until it is established by cogent reasons that learned Trial Court has committed serious error resulting into palpable injustice to the party or order impugned is in teeth of settled principle of law or Page 11 of 13 Downloaded on : Thu Aug 08 21:00:36 IST 2024 NEUTRAL CITATION C/AO/266/2018 ORDER DATED: 05/08/2024 undefined it is arbitrary. Duty is casted upon the person challenging discretionary order to establish that impugned order is completely against settled principle of law and requires interference. Thus, under limited jurisdiction, if we examine impugned order, what prima facie appears that gift deed, power of attorney or other agreements or registered documents are challenged by the plaintiff claiming it to be executed under fraud or under coercion are of the year 2013, 2014 and 2015. Suit is filed in the year 2017. All these registered documents have presumptive as well as probative value as they are executed after following due procedure laid down in the Registration Act. Person challenging validity, value and legality of these documents has to prove with lofty and tall evidence that those documents are executed under fraud. Merely, stating it to be fraud would be not be fraud.
18. In view of Order 6 Rule 4 of CPC, whenever fraud is played with the plaintiff, he he has to plead particulars. Now if we examine plaint as it is, particulars of fraud played or breach of trust taken place with plaintiff, are prima-facie missing in the plaint.
19. What also can be noticed that some of the properties have been transferred as NA land by Collector and they have been deleted from income tax return of the plaintiff and fell in income tax return of defendant no.1. In F.P.No.55/1, there is Angel Farm and in F.P.No.55/2, commercial building was constructed. These things can be observe to held that plaintiffs claim prima facie, miserably failed to prove three golden principle in favour of the plaintiff. Documents are registered and effect of registration, Page 12 of 13 Downloaded on : Thu Aug 08 21:00:36 IST 2024 NEUTRAL CITATION C/AO/266/2018 ORDER DATED: 05/08/2024 undefined which fell in favour of the purchaser, the property cannot be disturbed until documents are disturbed by the competent Civil Court. Moreover, what can be noticed that by putting clips in the impugned order, learned Trial Court has put transfer of disputed property under principle of lis pendence enshrined in section 52 of the Transfer of Property Act. Thus, if plaintiff proves his pleadings and succeeds in his case, section 52 of the Transfer of Property Act, principle of lis pendence would take care of his right, title and interest if any involved in the suit property. Assistance can be taken from the judgment of the Hon'ble Apex Court in the case of Yogesh Goyanka Versus Govind [2024 JX(SC) 540], whereby, the Hon'ble Apex Court observed about principle of lis pendence in para 16 as under :-
"16. The fulcrum of the dispute herein concerns the impleadment of a transferee pendente lite who undisputedly had notice of the pending litigation. At the outset, it appears pertinent to reiterate the settled position that the doctrine of lis pendens as provided under Section 52 of the Act does not render all transfers pendente lite to be void ab-initio, it merely renders rights arising from such transfers as subservient to the rights of the parties to the pending litigation and subject to any direction that the Court may pass thereunder."
20. On over above reasons, this Court finds that Appeal from Order is bereft of merits and requires to be rejected and accordingly, it is rejected.
21. Connected Civil Application also stands disposed of.
(J. C. DOSHI,J) SATISH Page 13 of 13 Downloaded on : Thu Aug 08 21:00:36 IST 2024