Gujarat High Court
Hareshbhai Laljibhai Kapadiya vs Bachuji Amraji Thakor & 22 on 29 August, 2016
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/CA/9318/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR STAY) NO. 9318 of 2013
In APPEAL FROM ORDER NO. 352 of 2013
With
CIVIL APPLICATION NO. 8527 of 2013
In
APPEAL FROM ORDER NO. 324 of 2013
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HARESHBHAI LALJIBHAI KAPADIYA....Applicant(s)
Versus
BACHUJI AMRAJI THAKOR & 22....Respondent(s)
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Appearance:
MR LALIT K BABULKAR, ADVOCATE for the Applicant(s) No. 1
MR MEHUL S SHAH, ADVOCATE for the Applicant(s) No. 1
MR ANAND R PATEL, ADVOCATE for the Respondent(s) No. 20 - 21
MS MEGHA JANI, ADVOCATE WITH MR DEVANG J JOSHI, ADVOCATE for
the Respondent(s) No. 22 - 23
NOTICE SERVED for the Respondent(s) No. 1 - 3 , 4-6, 12, 13-16
NOTICE SERVED BY DS for the Respondent(s) No. 7 - 11
RULE SERVED BY DS for the Respondent(s) No. 22 - 23
SERVED BY AFFIX(N) for the Respondent(s) No. 17 - 19
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 29/08/2016
ORAL ORDER
1. The applicant has filed two appeals against the impugned common order passed by the learned trial Judge and the appeals are admitted by this Court vide order dated 14 th June, 2016, and the rule came to be issued in the present Page 1 of 8 HC-NIC Page 1 of 8 Created On Thu Sep 01 03:16:55 IST 2016 C/CA/9318/2013 ORDER applications considering the question of interim relief.
2. Heard Mr. Mehul Suresh Shah, learned advocate for the applicant and Ms. Megha Jani, learned advocate for Mr. Devang Joshi, learned advocate for the respondent No.22 and Mr. Riddhesh Trivedi, learned advocate for the respondent No.23. Despite service of notice, there is no appearance on behalf of rest of the respondents.
3. Mr. Mehul Suresh Shah, learned advocate for the applicant submits that the Block No. 180, ad-measuring 57,000 and odd sq.mtrs premises of many survey numbers. The respondents No.1 to 16 are the original landowners who executed four different agreement of sale in favour of the applicant. He further submits that, after executing the agreement of sale, the original landowners had executed sale deed in December 2006 in favour of the respondents No.18 and 19 which subsequently came to be cancelled in 2010. Thereafter on 22.1.2010 a sale deed in favour of respondent No.20 of part of land ad-measuring 19000 and odd sq.mtrs came to be executed. The applicant thereafter filed a suit on 22.4.2010 and also got lis pendense registered on the same day. Learned advocate further submitted that, despite lis Page 2 of 8 HC-NIC Page 2 of 8 Created On Thu Sep 01 03:16:55 IST 2016 C/CA/9318/2013 ORDER pendense, two sale deeds came to be executed; one sale deed came to be executed by respondent No.20 in favour of respondent No.22 on 23.3.2011 for the land ad-measuring 19000 and odd sq.mtrs, and second sale deed came to be executed by the respondents No.1 to 17 i.e. original land owner in favour of respondent No.23 on 26.5.2011 for the land ad-measuring 37000 and odd sq.mtrs. Thereafter the applicant submitted Exh.45 application during the pendency of Exh.5 application for ad-interim injunction in favour of respondents No.22 and 23. The learned trial Judge by impugned common order dismissed both the applications Exh.5 as well as Exh.45, and therefore, the appellants have preferred the appeals before this Court, and prayed that during the pendency of appeals, the interest of the applicant may be protected by restraining the respondents from transferring the land in question.
4. Ms. Megha Jani, learned advocate for the respondents No.22 and 23 submits that the applications Exh.5 and Exh.47 remain pending in the trial court for long time and the appeals are also remain pending at the admission stage since 2013. According to her submissions, there are no averments in the plaint as to the readiness and willingness of the applicant to Page 3 of 8 HC-NIC Page 3 of 8 Created On Thu Sep 01 03:16:55 IST 2016 C/CA/9318/2013 ORDER perform their part of contract as required by the Specific Relief Act. She further submits that the banakhats executed in favour of the applicant are hit by Section 43 of the Tenancy Act as such they are invalid. In support of her submission, she has relied upon an unreported decision of this Court dated 12- 13/04/2016 rendered in Appeal from Order No. 489 of 2013 (Hardik Harshadbhai Patel vs. Amarsang Nathaji as himself and as karta and manager and four others), wherein, after considering the provisions of Section 43 of the Tenancy Act this Court has held that, any agreement executed in violation of Sub-sec. 1 of Section 43 of the Tenancy Act, are to be treated as unlawful and void and cannot be enforced nor any decree for specific performance of such agreements could be passed by the court. Therefore she submits that since the execution of agreement to sale in favour of the applicant itself is in violation of the provisions of Section 43 of the Tenancy Act, and therefore, the ad-interim relief as prayed for in the present applications may not be granted in favour of the applicant.
5. In rejoinder, Mr. Mehul Suresh Shah, learned advocate for the applicant submits that, in view of the decision of the Supreme Court in the case of Van Vibhag Karamchari Griha Page 4 of 8 HC-NIC Page 4 of 8 Created On Thu Sep 01 03:16:55 IST 2016 C/CA/9318/2013 ORDER Nirman Sahakari Sanstha Maryadit (Regd.) v. Ramesh Chander and others [AIR 2011 S.C. 41], wherein it is held that the conditional decree can be passed for specific performance of the agreement. He has also relied upon the decision of Full Bench of this Court in the case of Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai and others [1984 (2) GLR 1001] which is approved by the Supreme Court in the case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) v. Ramesh Chander and others (supra. He has also relied upon the decision of the Supreme Court in the case of Guruswamy Nadar v. P. Lakshmi Ammal (D) through Lrs. and others [2008(3) GLH 371] wherein the doctrine of lis pendense as well as the consequences of the registration of the lis pendense are explained.
6. Ms. Megha Jani, learned advocate for the respondents No.22 and 23 has relied upon the decision of this Court in the case of Rameshbhai Chaturbhai Prajapati and others v. Minaxiben wd/o Rasiklal Tilakram and others [2011(2) GLH 760] wherein the Full Bench decision of this Court in the case of Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai and others (supra) is considered and Page 5 of 8 HC-NIC Page 5 of 8 Created On Thu Sep 01 03:16:55 IST 2016 C/CA/9318/2013 ORDER distinguished, and has held that, under Section 43 of the Tenancy Act, no transaction can be entered into without previous sanction of the competent authority.
7. Having heard the learned advocates for the respective parties and having considered the impugned order passed by the learned trial Judge, it appears that the learned trial Judge has dismissed the applications Exh.5 and Exh.45 mainly on the ground that the agreement to sale entered into between the plaintiff i.e. present applicant and the original land owners was prohibited by Section 43 of the Tenancy Act. The facts emerging prima facie from the record are that, after filing of the suit on 22.4.2010, the applicant got lis pendense registered and thereafter the respondents No.22 and 23 have purchased some parcel of the land. The contention of learned advocate Ms. Megha Jani that the whole transaction between the applicant and the original landowners is hit by Section 43 of the Tenancy Act as has been held by this Court in an unreported decision in the case of Hardik Harshadbhai Patel (supra) and Ramesh Chaturbhai Prajapati (supra), and therefore, the applicant is not entitled to get any relief and the present suit cannot be accepted at this stage. The fact remains that the respondents No.22 and 23 have entered into the Page 6 of 8 HC-NIC Page 6 of 8 Created On Thu Sep 01 03:16:55 IST 2016 C/CA/9318/2013 ORDER transaction after the registration of lis pendense that means that they had noticed or knowledge about the pendency of litigation in respect of the land which they had purchased. The Supreme Court in the case of Guruswamy Nadar v. P. Lakshmi Ammal (D) through Lrs. and others (supra) has considered the effect and implication of the registration of the lis pendense. Of course, the fact of the registration of lis pendense would be ultimately considered and decided by the trial court. But, at this stage, despite having the knowledge of the pending litigation, the respondents No.22 and 23 have purchased the suit land. Therefore if any further transaction is entered into by them in respect of the land which they have purchased would lead to further litigation and the persons who would purchase the land from them would also have to face the litigation. At the same time, the applicant asserts that they are in possession while the respondents No.22 and 23 also asserts that they are in possession and therefore interest of both the parties are required to be protected during the pending appeals. Therefore, I am of the view that if the parties to the litigation are directed to maintain status-quo as regards to the title and possession of the suit land during the pendency of appeals, the interest of justice would be sub-served. Page 7 of 8 HC-NIC Page 7 of 8 Created On Thu Sep 01 03:16:55 IST 2016 C/CA/9318/2013 ORDER
8. The applications succeed and are hereby allowed. The parties are directed to maintain status-quo in respect of the title and the possession of the suit land till the disposal of the appeals. Rule is made absolute to the aforesaid extent with no order as to costs.
9. The issue considering the question of law involved in the appeals and the fact that both the parties i.e. applicant - original plaintiff and the respondents No.22 and 23 have invested huge amount in the suit land, I am of the view that the hearing of appeals are required to be expedited and the appeals are required to be heard earliest. The Registry is therefore directed to list the appeals being Appeal from Order No.352 of 2013 and Appeal from Order No.324 of 2013 for final hearing on 19th September, 2016.
(A.G.URAIZEE,J) syed/ Page 8 of 8 HC-NIC Page 8 of 8 Created On Thu Sep 01 03:16:55 IST 2016