Gujarat High Court
M/S Shanti Infra Developers Through ... vs Vedshala Astronomical Observatory ... on 15 October, 2014
Author: S.G.Shah
Bench: S.G.Shah
C/AO/398/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 398 of 2014
With
CIVIL APPLICATION NO. 10578 of 2014
In
APPEAL FROM ORDER NO. 398 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH SD/-.
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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M/S SHANTI INFRA DEVELOPERS THROUGH PARTNER....Appellant(s)
Versus
VEDSHALA ASTRONOMICAL OBSERVATORY THROUGH TRUSTEES &
5....Respondent(s)
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Appearance:
VIRAL K SHAH, ADVOCATE for the Appellant(s) No. 1 - 1.2
MR JR SHAH, ADVOCATE for the Respondent(s) No. 3 - 4
MS ANUJA S NANAVATI, ADVOCATE for the Respondent(s) No. 1 - 1.3
NOTICE SERVED BY DS for the Respondent(s) No. 6
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 15/10/2014
Page 1 of 47
C/AO/398/2014 CAV JUDGMENT
CAV JUDGMENT
1. Heard Mr. N.D. Nanavati, learned Senior Counsel with Mr.Viral K. Shah, learned advocate for the appellants, Mr. Sudhir Nanavati, learned Senior Counsel with Ms. Anuja Nanavati, learned advocate for respondent no.1 as well as Mr.R.S. Sanjanwala, learned Senior Counsel with Mr. J.R. Shah, learned advocate for the respondent nos.2 to 5 at length. Respondent no.6 though served, remained absent.
2. Appellants herein are original respondent no.5, 5.1 and 5.2 whereas respondent no.1 is a public trust through its trustees respondent nos.1.1 to 1.3 who are original plaintiffs and respondent nos.2 to 5 are original defendant nos.1 to 4 and respondent no.6 is original defendant no.6 in Civil Suit No.2061 of 2014 filed by respondent no.1 as plaintiff before the City Civil Court, Ahmedabad. The parties are referred to in this judgment in their original status in such suit.
3. The plaintiff has filed the suit for declaration and permanent injunction and prayed for declaration that alleged deeds executed by defendant nos.1 to 4 in favour of defendant nos.5, 5.1. and 5.2 are in collusion with defendant no.6 and for further declaration that all such transactions between them are resulted into fraud against plaintiff and, therefore, they are illegal, null and void and unenforceable at law; with a further prayer to declare the defendant nos.5, 5.1 and 5.2 as trespassers in the suit land owned by plaintiff no.1 trust and thereby an order against defendant nos.5, 5.1 and 5.2 to evacuate and handover the possession of the suit land to the plaintiff trust. As ancillary Page 2 of 47 C/AO/398/2014 CAV JUDGMENT relief, plaintiff has also prayed to restrain defendant nos.5, 5.1 and 5.2 with their agents etc. from making any construction and / or use or sale or alienating in any manner whatsoever or even creating mortgage or further encumbrances in favour of third party over the suit land which is situated at Seijpur Bogha in City, Taluka and District Ahmedabad6 (Naroda), which is part of TP Scheme no. 47, whereby, the land was assigned so Final Plot no.44. Minute and elaborate details of suit land is very well described in the plaint and since there is no dispute with regard to the identification of suit land, said details are not reproduced herein and it is referred only as a suit land. With such reliefs in plaint, plaintiff has also filed an application for Interim Relief being Notice of Motion at Exh.7 being application for adinterim injunction, wherein, similar interim relief is prayed pending hearing and final disposal of the suit, so as to restrain defendant no.5, 5.1 and 5.2 to alienate the suit land in any manner and to create any encumbrances on it. By judgment and order dated 11.9.2014, the Chamber Judge of City Civil Court has allowed such application for temporary injunction in terms of Paragraph 14 of such impugned judgment, wherein, every details is disclosed exhaustively by making it clear that third parties in whose favour 55 units have already been sold by different sale deeds executed by defendant no.5 and its partners, such sale deeds shall be subject to final decision of the suit.
4. Thereby, practically, the impugned order is restraining defendant nos.5, 5.1 and 5.2 as prayed for by the plaintiff, and therefore they have challenged such order in the present appeal.
5. If we scrutinize the factual crux, it is found that plaintiff is a trust and, therefore, the main submission on behalf of the Page 3 of 47 C/AO/398/2014 CAV JUDGMENT plaintiff is to the effect that since suit property is owned by the trust, the same cannot be dealt with by defendants without prior permission of the Charity Commissioner as provided under the Bombay Public Trust Act. Whereas, on same facts, it is contended by the defendants that without prior permission of the Charity Commissioner, the trust is not entitled to file such suit and, therefore, suit is not maintainable and in that case interim relief cannot be granted by the trial Court and hence this appeal.
6. If we peruse the record and factual submissions by both the sides, it is admitted position that the suit land is originally owned by one Kuberdas Hargovinddas Modi, who has entered into an agreement with one Smt. Samjuben d/o Motibhai Manoharbhai, whereby, suit land was given to said Samjuben on lease for a period of 999 years by way of registered lease deed executed on 3.5.1947. Pursuant to such lease deed, the suit land was given on lease to said Samjuben against yearly rent of Rs.1,695/ from and on 15.1.1947 with a condition that lessee shall be entitled to purchase the leased property which is a suit property and lease rent is to be paid year to year in advance i.e. yearly rent is to be paid in advance i.e. before the starting of the new year of lease and that on payment of lease rent p.a., the lessor shall not be entitled to get the possession of property, but if lessee fails to pay the rent, then lessor shall issue a notice after the date when rent is due, claiming from the lessee to pay the rent with 6% interest within two months and if lessee fails to pay within such period rent with such interest within the notice period, then lessor shall be entitled to get back the possession with any construction on it with claim of accrued rent, damages, interest etc. The lease period was fixed as 999 years with a condition that during the period of lease if lessor wants to Page 4 of 47 C/AO/398/2014 CAV JUDGMENT purchase the suit property, then he shall pay an amount of Rs.50/ per square yard, thereby, aggregate amount of Rs.42,350/. It is further agreed under such lease deed that if lessor wants to sublet such property to any other person, then it should be subletted only to some suitable or deserving person on condition that he should abide by all the conditions of the lease deed as well as local authority with one additional condition that it should not be subletted to anyone except a Hindu with one additional condition that in case of such sublease, the lessor shall pay Rs.1 towards `Sakar Najrana' (May be called omen gift to disclose such subsequent transaction to the lessor).
7. Similarly, lessor was permitted to sale or mortgage or gift or transfer or assign the suit property to anybody keeping the rights of lessor therein in force as such.
8. It is also agreed between the parties i.e. lessor and lessee in such lease deed dated 3.5.1947 that as and when lessee wants to purchase the suit property, she has to serve a notice in writing before a month and shall pay the agreed sale price being Rs.42,350/. On receipt of such sale price, lessor has to execute a registered sale deed in favour of the lessee and if there is any charge, encumbrances or mortgage on suit property, then it is to be removed by the lessor and if lessor fails to do so, lessee is entitled to get it clear at the cost of the lessee.
9. It is not disputed fact that when such lease deed was executed, plaintiff trust was not in existence and even before suit property is vested in plaintifftrust by gift deed dated 2.9.1968, on 20.4.1950 original lessee Samjuben had executed a lease deed assigning i.e. subletting the suit land in favour of M/s.
Page 5 of 47 C/AO/398/2014 CAV JUDGMENTKrishna Pottery Works and thereby it became the lessee of land subleased by such deed dated 20.4.1950, which was registered on 23.6.1950.
10. It is contended in the plaint that original lessor Kuberdas Hargovinddas Modi being interested in development of astronomy and its allied subject, had gifted various land in favour of the plaintifftrust in the year 196869, together with all the existing tenants and the defendants rights vested therein, by separate gift deeds which were registered on 2.9.1968 and 16.4.1969; amongst which gift deed bearing No.AHD/9283/1968 dated 2.9.1968 is regarding the suit property which were gifted to the plaintiff trust. Therefore, pursuant to such gift deed dated 2.9.1968, plaintiff trust became the owner of the suit land and it was, therefore, mutated in the revenue record accordingly. Amongst all such properties gifted to the plaintiff, suit land forms a part of gift deed dated 2.9.1968 as referred hereinabove.
11. It is also not disputed fact that lease deed in favour of M/s.
Krishna Pottery firm was only for 20 years and thereby it came to an end in the year 1970. However, by a lease deed dated 15.10.1978, partners of M/s. Krishna Pottery Works has subleased the suit property against payment of Rs.61,000/, in favour of [1] Naranbhai Pachabhai Makwana and [2] Laxmanbhai Pachabhai Makwana. Present defendant nos.2 to 5 are legal heirs of one of such lessee namely; Laxmanbhai Pachabhai Makwana. It is also pleaded that Naranbhai Pachabhai Makwana and Laxmanbhai Pachabhai Makwana got separated from each other since long and therefore suit land was held by Laxmanbhai Pachabhai Makwana and his successor only Page 6 of 47 C/AO/398/2014 CAV JUDGMENT because Laxmanbhai Pachabhai Makwana had expired in the year 1986. It is also contended that thereafter the lease amount of Rs.1,694/ p.a. once paid to the plaintiff trust and necessary receipts were issued on 15.1.1998. However, thereafter, lessee fail to pay the rent and therefore plaintiff trust has issued a notice dated 25.2.2000 to the heirs of Laxmanbhai Pachabhai Makwana being present defendant nos.1 to 4 and thereby, all the allied rights of defendant nos.1 to 4 stood cancelled and terminated on and from the date when notice period is over and thereby since then defendant nos.1 to 4 were in illegal occupation of the suit land.
12. All documents in the form of lease deed mentioned hereinabove are produced on record with copy of such notice dated 25.2.2000. On perusal of such notice, it is clear that the plaintiff trust has intimated defendant no.2 and other heirs that since they have not paid the rent from January, 1999 and they failed to pay the rent for the next year even within two months after intimation of nonpayment of rent, rights and lease in favour of the lessee has been terminated from 25.2.2000 pursuant to conditions under the lease deed. Such notice is on page no. 259 in the paper book and at item no.11 in the list of documents produced by the plaintiff before the Civil Court.
13. It is further contended that though there was sublease, as aforesaid, after the original lease dated 15.1.1947, pursuant to condition to pay Re.1/ as `Sakar Najrana' to the original lessor, none of the sublessee has ever paid such an amount though it is a token amount of Re.1/, whereby, practically original lessor shall came to know about sublessing and the new tenant and therefore in the event of failure to comply with such condition, Page 7 of 47 C/AO/398/2014 CAV JUDGMENT such sublease deed would stand cancelled and the suit land would vest with its owner original lessor and it was ultimately gifted to the plaintiff and thereby plaintiff becomes the absolute owner of the suit land.
14. So far as ownership of plaintiff is concerned, it is not disputed fact that by a gift deed dated 2.9.1968, the original owner Kuberdas Hargovinddas Modi has gifted the suit land to the plaintiff and he remains as one of the trustees of the plaintiff trust during his life time.
15. However, if we peruse such gift deed, it becomes clear that suit land is gifted with the rights of Smt. Samjuben d/o Motibhai Manoharbhai as lessee and right to recover rent and ownership of the land has been gifted in favour of the plaintiff making a categorical statement in the gift deed that donor is unable to execute a sale deed since the lease deed is in favour of Smt. Samjuben d/o Motibhai Manoharbhai and is there a condition of preference to purchase a land by her and, therefore, property is gifted with all its right and plaintiff has accepted it as such and thereby, plaintiff becomes the absolute owner though possession of the land was with the lessee as aforesaid. Thereby, plaintiff becomes absolute owner of the suit property but with the lease in favour of Smt. Samjuben d/o Motibhai Manoharbhai.
16. All such transactions are also recorded in a property card by the City Survey Superintendent of the City, copies of which are on record. Minute details of such property card are not material since there is no dispute about all that transactions, but the dispute is with reference to the rights of different parties under such transactions.
Page 8 of 47 C/AO/398/2014 CAV JUDGMENT17. The real dispute starts after all above transactions and when plaintiff trust came to know about certain unauthorized construction being undertaken on the suit property. Thereby, plaintiff has issued a public Notice on 14.3.2013 through its advocate conveying the public at large that trust is a real owner of the suit property and, therefore, any construction or use of suit land would amount to illegal construction and occupation and thereby called upon all such persons to immediately stop any such illegal activities on the suit land. Thereby, defendants were put to the notice of plaintiff's right and their illegal activities by such notice dated 14.3.2013. Plaintiff has also served a specific notice upon defendant nos.5, 5.1 and 5.2 on 11.7.2013 confirming their right and calling upon them to vacate the suit properties, contending that plaintiff trust had never entered into any sale transaction or never assigned any lease right in their favour and that plaintiff could not do so without seeking necessary permission from the Charity Commissioner as required under the Bombay Public Trust Act.
18. However, plaintiff has come to know that defendant nos.1 to 4 have executed sale deeds in favour of defendant nos.5, 5.1 and 5.2, plaintiff has specifically contended and alleged that defendant nos. 1 to 4 have no right whatsoever to execute such sale deeds and even by such sale deeds, defendant nos.5, 5.1 and 5.2 can never become absolute owners of the suit property. The sale deed executed by defendant nos.1 to 4 in favour of defendant nos.5, 5.1 and 5.2 and produced at page no.97 of compilation as item no.7 in the list of documents is dated 8.9.2011, copy of which is received by the plaintiff on 3.6.2013. This is a vital document for the rights of the defendant no.5 Page 9 of 47 C/AO/398/2014 CAV JUDGMENT being appellant herein since they can claim their right of ownership or otherwise based only upon these document which is executed by defendant nos.1 to 4 in favour of them. On perusal of such registered sale deed dated 8.9.2011, it becomes clear that the defendant nos. 1 to 4 have categorically disclosed in such sale deed that the suit land is of plaintiff trust, which is registered in a revenue record in their name as lease holders. However, surprisingly, when it is categorically stated in initial paragraphs on page no.5 of such documents that defendant nos.1 to 4 are entitled to transfer the leasehold rights, they have entered into such sale deed and purchaser has also agreed to pay huge amount to them. Immediately, after such confirmation, there is a categorical disclosure that land was initially owned by Kuberdas Hargovinddas Modi, who has leased it in favour of Smt. Samjuben d/o Motibhai Manoharbhai for 999 years and thereafter said Samjuben had subleased it initially for 20 years in favour of Ranchhodlal Maganlal Shah as owner of M/s. Krishna Pottery Works by registered lease deed dated 23.6.1950 and by registered lease deed dated 2.5.1952, predecessor in title of defendant nos.1 to 4 have got it on lease for three years. It is also disclosed in such sale deed that thereafter suit land was gifted to the plaintiff. However, even after disclosure of all such lease agreement, ultimately, defendant nos.1 to 4, in Paragraph no.10 of such sale deed, disclosed that pursuant to such agreement, they become absolute owner, though it is a completely false statement, more particularly, when immediately in the next line, defendant nos.1 to 4 have again specifically admitted that by selling rights of lease for 999 years since they are getting more market price of the property and to get the benefit of estate, they agreed to sell out such right of lease. Though in previous paragraphs, there is no clarity that how they Page 10 of 47 C/AO/398/2014 CAV JUDGMENT have acquired the right for remaining period of years out of 999 years, when initial lease in their favour was only for three years in the year 1952, as disclosed by themselves in such registered sale deed. Fortunately, while disclosing the nature of rights which is being transferred by such registered sale deed, the defendant nos. 1 to 4 do not have an option but to write and say that they are selling of their rights whatsoever in the suit land with all other allied rights including a right to get the property purchased from the plaintiff. Therefore, it is crystal clear that if defendant nos. 1 to 4 are absolute owners of the suit property and if they are entitled to sell out with absolute rights to any third person, then they have no reason to disclose that they are holding lease right and that purchaser i.e. defendant nos.5, 5.1 and 5.2 are now entitled to get the suit land purchased by getting execution of sale deed from the plaintiff. Such transaction is for Rs.5,04,43,000/ against which possession of the suit land was handed over by defendant nos.1 to 4 to defendant no.5 who in turned had started construction of residential flats and selling of individual units with right over land and it becomes the cause for present dispute and litigation.
19. Surprisingly, though appellants are now claiming to be absolute right over the suit property based upon such sale deed dated 8.9.2011 and after such suit and interim order, they have now infact realized that they are not the absolute owners of the suit property and at the most they could be the subtenant or sub lessee of the suit property at the hands of defendant nos.1 to 4.
20. One more glaring fact has been submitted by the plaintiff that in fact though defendant nos. 1 to 4 have executed a sale deed and though there are two diverse and contrary disclosure in the sale Page 11 of 47 C/AO/398/2014 CAV JUDGMENT deed dated 8.9.2011 in favour of defendant nos.5, 5.1 and 5.2 (present appellants) i.e. at one place it is stated that suit land is absolutely sold and in several other places it is stated that the lease holder sold and purchaser is entitled to get sale deed executed from the plaintiff. Such situation is more clarified in form of letters dated 27.8.1997 and 13.9.1997 addressed by defendant no.2 to the plaintiff trust. On perusal of both these letters, it becomes clear that defendant no.2 has categorically stated to the Managing Trustee of the plaintiff trust that plaintiff trust has become absolute owner of the suit property as it was gifted to the plaintiff trust by its original owner namely; Kuberdas Hargovinddas Modi and that, therefore, rent was being paid to the plaintiff. In first letter, it is further categorically stated that father of respondent no.2 has purchased such leasehold rights from Samjuben with a right to get sale deed executed in their favour and, therefore, defendant no.2 is holding the leasehold right and after disclosing all such facts, what is conveyed is to the effect that defendant no.2 is willing to purchase the suit property and requested the trust to do the needful for the same. With such disclosure, defendant no.2 has categorically further conveyed by second letter dated 13.9.1997 that such issue be placed before the trustees of the plaintiff trust and requested the trust to get necessary permission from the Government for such sale transaction. With such request, in second letter dated 13.9.1997, it is conveyed by defendant no.2 that they are regularly paying the rent and it is fully paid till 14.1.1998 and that they have intention to purchase the said land. The sale price as per first lease deed dated 3.5.1947 is also mentioned in such letter which is only Rs.42,350/.
21. However, thereafter, till the sale deed in favour of defendant Page 12 of 47 C/AO/398/2014 CAV JUDGMENT no.5 in the year 2011 i.e. for thirteen years i.e. from the year 1999 till the year 2011, defendant nos. 1 to 4 had never inquired or bothered or to pay either the rent or the sale price but all of a sudden, just before executing a sale deed in favour of defendant nos.5, 5.1. and 5.2, yearly rent @ Rs.1,694/ for thirteen years i.e. Rs.22,022/ has been credited in the account of plaintiff by an account payee cheque no.631897 by defendant no.2. The photo copy of cheque and counter slip of depositing such cheque is on record, wherein, there is endorsement that it is towards rent for the period from 15.1.1994 to 14.1.2012. It is now clear and admitted position that defendant nos. 1 to 4 have not paid the rent for thirteen years and all of a sudden, they paid such amount of by an account payee cheque, without any intimation or confirmation by the plaintiff.
22. It is contended by the plaintiff that such amount is deposited in their account without their knowledge and, therefore, though plaintiff trust was issuing proper receipts for acceptance of any such amount, as it is done by receipt no.195 dated 15.1.1998 for the rent between 15.1.1998 till 14.1.1999, defendant nos.2 to 4 could not come forward with any such receipts and, therefore, they have simply confirmed the bank, transaction by the certificate of the bank, dated 27.7.2011. It is, therefore, submitted that when cheque is paid on 25.7.2011 in absence of any dispute on that day, there was no reason for defendant no.2 to get a certificate immediately on the next day i.e. on 27.7.2011 regarding such transaction. Therefore, it is submitted that instead of disclosing such payment to the plaintiff and requesting for a regular receipts, defendant nos.1 to 4 have tried to create an evidence regarding payment without the knowledge of the plaintiff. There is reason for the plaintiff to say so which Page 13 of 47 C/AO/398/2014 CAV JUDGMENT will be disclosed hereinafter, after disclosing similar other facts.
23. Similarly, defendant nos.5, 5.1. and 5.2 have tried to create an evidence that they have already paid the sale consideration as per original lease deed of the year 1947 to the plaintiff. For the purpose, now, defendant nos.5, 5.1. and 5.2 have deposited a cheque of Re.1/ in the account of the plaintiff on 7.9.2011 which is credited in the plaintiff's account on 8.9.2011. Again, instead of seeking proper receipts from the plaintiff, defendants have immediately on 14.9.2011 obtained a certificate from the Bank regarding such transaction. This is really a surprising activity, inasmuch as when only Re.1/ is to be paid, it can be paid in cash against a proper receipt because the proper receipt is more material than such transaction by Bank which is yet to be scrutinized that whether it is a bonafide transaction or an act to create some evidence to hamper and disturb the rights and title of the plaintiff over the suit property. Similar attempt is made by defendant nos.5, 5.1. and 5.2 again by crediting an amount of Rs.42,350/ by an account payee cheque dated 5.6.2012 i.e. after nine months from the sale deed executed by defendant nos.1 to 4 in their favour and again crediting Rs.1,694/ on 2.8.2013 towards rent of the suit land from 14.1.2013 till 14.1.2014.
24. In any case, as contended by defendant nos.5, 5.1. and 5.2 that they have purchased the suit property by making payment to defendant nos.1 to 4 as per sale deed in their favour and to the plaintiff as per above Bank transaction, there is no reason for them now to pay the rent for the period between January, 2013 till January, 2014. Therefore, there is substance in the submission by the plaintiff that infact all such payments are Page 14 of 47 C/AO/398/2014 CAV JUDGMENT made behind their back without knowledge and intimation and only with a view to create an evidence that such payment is made and, therefore, now properties are to be treated as sold out by the plaintiff in favour of defendant nos.1 to 4 and in turn to defendant no.5. Primafacie therefore, it becomes clear and obvious that there is calculated activities by defendant nos.1 to 5 in converting the suit property under their control, though they are not the actual owners.
25. When such property was held by the plaintiff trust after the gift in their favour and when such fact has been admitted by defendant nos.1 to 4, now it is clear and obvious that suit property cannot be sold without prior permission of the Charity Commissioner and, therefore, primafacie, all such transactions are certainly bad in law and after appropriate legal proceedings, it would be declared as null and void. If it is so, then certainly defendant nos.1 to 5 do not get better title over the suit property irrespective of all their activities and agreements which are referred hereinabove.
26. So far as Bank transactions are concerned, it is the case of the plaintiff that defendant no.6, who was serving with the plaintiff at relevant time, has committed several mischiefs and forgery with the plaintiff in creating such evidence in favour of defendant nos.1 to 5. Relevant details of such issue is discussed hereinafter when concerned document is taken care of.
27. It seems that after getting the property transferred in their name in the month of September, 2011, defendant no.5 has started construction in the suit property and for getting permission of such construction they have submitted one `no objection' letter Page 15 of 47 C/AO/398/2014 CAV JUDGMENT before the local authority i.e. Ahmedabad Municipal Corporation as if it was issued by the plaintiff. It is specifically pleaded and contended by the plaintiff that such letter dated 19.8.2011 as NOC was never issued by the plaintiff trust but it is a forged document and probably it was created by defendant no.6. Copy of such letter is at page no.354 of the paper book. Learned advocate for the plaintiff has pointed out from such letter that they have obtained such photocopy from the Office of the Ahmedabad Municipal Corporation under the RTI Act and pointed out that it was an old letter head of the plaintiff trust, which was misused by some one as a letter by the plaintiff issued as NOC the telephone number on such preprinted letterhead of the plaintiff was showing the telephone number of six digits only "405164," whereas in the year 2011, trust was using a new letter head since telephone numbers were of eight digits in the year 2011 and infact new letterhead which was used in the year 2011 does not show the landline number but it only discloses a mobile number and other details. Copy of one such letterhead is also produced on record, which is at page no.362.
28. For such mischief and forgery, plaintiff has already filed a complaint on 12.8.2014 before the Naroda police station which is registered as Ist CR No.427 of 2014 under Sections 406, 420, 467, 471 and 114 etc. of IPC and also obtained a report from, Handwriting Expert Mr. J.J. Patel, a retired Chief Examiner of Questioned Documents of FSL, Gujarat and working as Handwriting Expert. In his report, Mr. Patel has confirmed that the signature of Managing Trustee namely; Sidhharth Manishanker Sharma on such NOC dated 19.8.2011 is not by the Managing Trustee of the plaintiff trust namely; Sidhharth Manishanker Sharma, after comparing his admitted signatures Page 16 of 47 C/AO/398/2014 CAV JUDGMENT as well as specimen signatures.
29. Therefore, plaintiff has reason to say that defendants have committed forgery and cheating to grab their land and, therefore, plaintiff has, by notice dated 11.7.2013 conveyed the respondent nos.5, 5.1 and 5.2 about all such misdeeds and conveyed that they are absolute owner of the suit property even though there is a sale deed in favour of defendant no.5 by defendant nos.1 to 4 and called for the peaceful possession of the suit property because of breach of condition of the lease deeds contending that lease deed has come to an end because of such breach. Considering the ongoing construction work on the suit property, plaintiff has also conveyed their objection to the legal authority namely; Ahmedabad Municipal Corporation and requested them to take appropriate steps to stop such illegal construction.
30. Defendant nos.5, 5.1 and 5.2 while replying such notice, now, first time came forward with a story that they have obtained title clearance certificate by issuing a Public Notice on 21.1.2011, 31.7.2012 and 25.9.2012 and in absence of any objection against such public notice, they have entered into such sale deed. It is further contended in such reply dated 8.8.2013 by defendant no.5 which also bears signature of defendant no.5.1, as partner of defendant no.5 that amongst the trustees of the plaintiff trust, one trustee Sidhharth Sharma and clerk of the trust namely; Dharmeshbhai met him on or around 3.7.2011 and they conveyed that rent from 15.1.1999 to 14.1.2012 may be credited in the Bank account. Details of which was provided by them and they promised that they will execute a registered sale deed in any name as conveyed by defendant no.5. The reference of the Page 17 of 47 C/AO/398/2014 CAV JUDGMENT Clerk of the trust Dharmeshbhai herein seems to be defendant no.6. But the fact remains that a Private Limited Construction Company dealing with purchasing a property at the cost of five crores rupees has simply relied upon so called oral promise by only one of the trustees and clerk of the trust and thereafter, deposited an amount of Rs.22,022/ in the account of the trust. Such fact in Paragraph no.16 of the reply, if read with the factual narration in Paragraph nos.1 to 15 in the same reply, makes it clear that though defendant no.5 was very much aware about the ownership of the suit property by the plaintiff, had entered into a transaction with defendant nos.1 to 4 to purchase a suit property as absolute owner without prior permission of the Charity Commissioner which is a statutory mandate. The defendant no.5 has in the same reply, now first time disclosed the payment made by them in the Bank account of the plaintiff which are discussed hereinabove and, therefore, there is no reason to deviate from such factual position that such amount was paid directly in the plaintiff's Bank account but probably without any intimation to the trust and without there being a proper resolution of the trustees.
31. Whereas, what is contended for such payment is also material to note here, inasmuch as though an amount of Re.1/ as Sakar Najrana and amount of Rs.42,350/ as sale consideration is deposited and though thereafter, there is no need to pay rent, defendants have paid yearly rent of Rs.1,694/ for the year 2013
14. Similarly, so far as payment of Rs.1/ towards Rs.42,350/is concerned, though it is a condition of original lease deed to pay for every subsequent transaction/s and thereby though for lease deed in favour of defendant no.5, payment of Re.1/ towards Sakar Najrana is must, it is contended in such reply that just to Page 18 of 47 C/AO/398/2014 CAV JUDGMENT avoid any dispute, such amount is paid contending that defendant is not liable to pay such amount.
32. Whereas, most interesting disclosure is with the factual details of depositing an amount of Rs.42,350/ towards sale consideration where it is stated that since defendants have deposited such amount in Bank account of the trust, now trust shall execute a sale deed in favour of defendant nos.1 to 5. Therefore, defendant nos.1 to 5 have practically admitted that though defendant nos.1 to 4 have executed a sale deed in their favour for the suit property, such sale cannot be confirmed unless sale deed is executed by the plaintiff. Thereby, it becomes clear and obvious that plaintiff is an absolute owner of the suit property and since plaintiff is a trust, such property cannot be sold or alienated in any manner without prior permission of the Charity Commissioner. Therefore, all such transactions after the property vested in favour of plaintiff in the year 1968 are practically illegal and needs to be treated as such. It is evident from such reply that infact copies of letters dated 27.8.1997 and 13.9.1997 are now disclosed by defendant nos. 1 to 5 with disclosure of payment as discussed hereinabove with relevant documentary evidence in the form of xerox of cheque and xerox of counter foil of payment slip, which categorically confirms that infact, defendant nos.1 to 5 have made all such payments without prior intimation to the plaintiff and, therefore, all such payment though received by the plaintiff are not bonafide payment and it is to be treated as such atleast at such primary stage.
33. The interesting disclosure thereafter made by the plaintiff by their reply dated 24.10.2013 in response to reply dated 8.8.2013 Page 19 of 47 C/AO/398/2014 CAV JUDGMENT by defendant no.5 discussed hereinabove. Now plaintiff have made it clear that there was no clerk namely; Dharmeshbhai in their trust and that Bank account in which defendants have credited such amount as discussed hereinabove, was a dormant account and it is a misdeed and mischief by the defendants in using such information obtained from some one concerned of the trust and, therefore, it was declared that plaintiffs have not accepted all such amount and thereby defendants do not get any right and title over the suit property. On the contrary, it is conveyed that infact trust has already cancelled the lease deed on and from 25.2.2000 pursuant to nonpayment of rent from 15.1.1999 and such fact has been conveyed to defendant no.2 namely; Tejuben wd/o Laxmanbhai Panchabhai Makwana on 25.2.2000 and, therefore, thereafter, there was no question of demanding the rent and hence allegations in the reply dated 8.8.2013 by the defendants against the administration of the trust are unwarranted. It is also stated that because of such termination of lease for nonpayment of rent, the possession has been vested in favour of the plaintifftrust. However, defendant no.1 has without disclosing such fact entered into sale transaction with defendant no.5.
34. Pursuant to such development, the plaintiff have conveyed the Ahmedabad Municipal Corporation about misdeeds and mischief by the defendants and questioned the legality of the construction being carried out by defendant no.5 since being owner of the suit land, they have never permitted any such construction or at least permission for such construction was never sought for with their consent. Pursuant to such objection, the Corporation has initiated inquiry and taken an action whereby, the Ahmedabad Municipal Corporation has refused to issued BU permission.
Page 20 of 47 C/AO/398/2014 CAV JUDGMENTHowever, during such inquiry, Corporation has disclosed to the plaintiff that they have approved the construction because of `no objection' letter of plaintiff trust which was submitted by the defendants. However, as discussed hereinabove, plaintiff has never issued such `no objection' letter but on the contrary, plaintiff has filed a complaint when it was found that such `no objection' letter dated 19.8.2011 is a forged one. Correspondence between defendant no.5 and the Ahmedabad Municipal Corporation as well as FIR dated 12.8.2014 and report of the handwriting expert etc. are also on record.
35. It is further contended by the plaintiff that in view of above facts and circumstances, when defendant nos.1 to 4 are not entitled to sell the suit property though they have executed a sale deed dated 8.9.2011 in favour of defendant no.5 with diverse disclosure regarding absolute ownership as well as leasehold rights with a disclosure to get the sale deed executed from plaintiff, when defendant no.5 does not get the absolute right of ownership on suit land, surprisingly, respondent no.5 has started not only to make illegal construction, but also entered into several sale deeds in favour of different persons and surprisingly in such sale deeds, now even after a knowledge that plaintiff has yet not executed a sale deed in their favour, for which defendant no.5 has requested the plaintiff by their notice dated 8..8.2013 i.e. even after the sale deed in their favour of defendant nos.1 to 4; in sale deed executed in the year 2013 by defendant no.5 in favour of different persons, while selling the individual unit of flat in constructed building, it is categorically disclosed by defendant no.5 that they are selling the particular unit of particular square yard in favour of the purchaser with undivided share on the suit land, though they are never Page 21 of 47 C/AO/398/2014 CAV JUDGMENT become an owner of the suit land and they could never sell the right of ownership over the suit land. Some such sale deeds and index of such sale transactions are produced on record, which confirm the above situation, inasmuch as in such sale deeds, it is categorically stated that sale is for the constructed unit + 27.3335 (and more) square meter undivided share. Learned Senior Advocate for defendant no.5 has tried to convince the Court and the plaintiff that such disclosure is not for undivided share of the land but its for common amenities like staircase, lifts etc. However, learned Senior Advocate for the plaintiff has pointed out from the certified copy of the index of few such individual sale deeds, wherein, considering the different area of the constructed flat, different area of the land was also disclosed as sold, as undivided share of the entire suit land, in favour of separate purchasers. Same such index are on page nos. 466 to
505. In all such index of sale deed by defendant no.5 in favour of different persons it is categorically states that defendant no.5 has sold particular flat number with particular measurement of revenue survey no.7, TP scheme no.47, FP no.44, city survey nos.977 to 1001 having consolidated number with clear disclosure that specific super built up area in a constructed building with construction is sold with rights of and on undivided land of specific square meter, ranging from 27.3335 for the flat admeasuring 105 square yards to 40.2133 square meter land with the flat of 157 square yards. Therefore, from such documentary evidence it is clear that though defendant no.5 is aware about his limitation of ownership they have sold out the right over suit property in favour of different purchasers.
36. Considering the above discussed factual details, primafacie, it appears clearly that;
Page 22 of 47 C/AO/398/2014 CAV JUDGMENT(36.1) suit property was a leasehold property for 999 years with a right to the lessee to purchase it at a fixed price, with a permission to use the land including permission for construction on such land but with a condition that in case of termination of lease, the lessee would not have any claim over the development or construction made by lessee on such land.
(36.2) even after such lease, the lessor remains the absolute owner and entitled to sell or gift it as already conveyed, discussed and confirmed in the first lease deed itself.
(36.3) Pursuant to such disclosure, original lessor has gifted the suit property to the plaintiff trust and thereby it becomes a trust property and that fact has been admitted by all the concerned.
(36.4) Once suit property is considered to be a property of a trust, then for dealing with any such property, prior permission of the Charity Commissioner is mandatory as per the provision of Bombay Public Trust Act.
(36.5) Primafacie, it is evident that after gift to trust, the lessee or the trust had never obtained any permission from the Charity Commissioner for subleasing, as it is evident from record.
(36.6) It is also evident that there was no payment of yearly rent from and on 15.1.1999 and thereby trust has terminated the lease in the month of February, 2000. Thereafter, all rights of the property vested in the trust.
Page 23 of 47 C/AO/398/2014 CAV JUDGMENT(36.7) As discussed in detailed, in above paragraphs, transactions by defendant nos.1 to 5 are seem to be improper, irrelevant and thereby illegal and it may be declared as null and void.
37. Though such issues are yet to be adjudicated during trial, at present, cumulative effect of above facts and circumstances certainly makes it clear that there is primafacie case in the plaintiff trust, as also the balance of convenience and absence of interim relief in favour of the plaintiff would certainly result into irreparable loss to the plaintiff.
38. In view of background of above scenario, if we peruse the impugned judgment, it becomes clear that the Civil Court has taken care of all cited cases before it and also all relevant facts submitted on record. However, at interim stage, when factual details are not elaborated much in detail, it cannot be said that Court has not considered the facts properly. It is settled position that at interim stage, practically, primafacie evidence is only to be looked into without coming to any final conclusion and, therefore, whatever discussed is with purpose to decide the interim application at such stage, both by the trial Court as well as by this Court.
39. It would be relevant and sufficient to refer the relevant paragraphs of the impugned judgment which confirms that there is no irregularity, illegality or arbitrariness or perverseness in the impugned judgment so as to interfere it in this appeal.
[44.1] PARAGRAPH NO.4 (II) AND (III):
Wherein activities of defendant nos.5, 5.1. and 5.2 and their Page 24 of 47 C/AO/398/2014 CAV JUDGMENT advocates have been taken care of.
[44.2] PARAGRAPH NO.8:
Wherein fact of documents and activities by defendant nos.5, 5.1. and 5.2 is considered.
[44.3] PARAGRAPH NO.14:
Again trial Court has taken care of all activities by defendant no.5 and given its reason that why they are not tenable.
[44.4] Section 36 of Bombay Public Trust Act was reproduced and properly considered.
All the citations referred at the bar are taken care of and discussed.
[44.5] In paragraph no.39, again reasons for decision are assigned and in paragraph no.40 while concluding, though interim application is allowed, it is made clear when there is a disclosure on record that defendant no.5 has sold 55 units of the constructed building in favour of third parties and in whose favour different sale deeds have already been executed by defendant no.5 and its partners, their sale deeds shall be subject to final decision of the suit directing the defendant no.5 and its partners to intimate passing of such order to those 55 unit holders. The interim application was decided accordingly.
40. Such reasoned judgment has been impugned in this appeal.
Learned Senior Counsel for the appellants has vehemently Page 25 of 47 C/AO/398/2014 CAV JUDGMENT argued against the decision and activities by the plaintiff. His first assail is infact against the last part of the impugned judgment where Civil Court has directed them to convey the holder of 55 units that sale deeds in their favour are subject to the final decision of the suit, contending that when those 55 persons are not before the Court, Court has no right or authority to decide their ownership. Suffice it to say that if seller does not have a better title over the suit property, then purchasers would not have better rights and if original plaintiff is not aware about all such subsequent sale transaction and until their details has been brought on record and pleaded that suit cannot be decreed in their absence, there is no substance in such argument.
41. As against that, learned Senior Advocate for the plaintiff has fairly contended that at present they do not want any relief against those 55 persons and they do not want to disturb their possession if actual possession is with them but certainly if sale in favour of defendant no.5 is ultimately declared as null and void in this suit, it would affect the rights of those 55 persons and, therefore, there is nothing wrong if the Court has directed the defendant no.5 to simply convey those 55 persons about such decision, more particularly when defendant no.5 has not disclosed full details of all such 55 persons.
42. It is further contented by the appellants that when only lease hold rights are sold, provisions of Section 36 of Bombay Public Trust Act would not apply to such transaction. It is also contended that since original lease is of year 1947 and Bombay Public Trust Act came into force from 1950, limitations of such Act would not bind the transaction. However, there is no substance in any such submission, inasmuch as Section 36(1)(b) Page 26 of 47 C/AO/398/2014 CAV JUDGMENT makes it specifically clear that no lease for a period exceeding ten years in the case of agriculture land or a period of exceeding three years in the case of nonagriculture land or a building belonging to a public trust shall be valid without the previous sanction of the Charity Commissioner. Whereas, so far as application of Act is concerned, it is not disputed fact that the property was gifted to the trust in the year 1968 i.e. after the enactment of the Trust Act in 1950 and, therefore, any transaction after 1968 would certainly in pursuance of the provisions of the Act and, therefore, if sublease is for more than ten years for agriculture land and for more than three years for nonagriculture land, previous sanction of the Charity Commissioner is mandatory.
43. It is also contended by the appellant that a suit land is not registered in the Public Trust of respondent no.1 and, therefore, it is deemed that it is not a trust property which can be governed by the Bombay Public Trust Act. Therefore, it is contended that the trial Court has erred in granting interim injunction on such presumption. However, what is surprising is the contention by the appellant when it is stated that appellant claiming to be holding title, occupation and possession of the suit land since 8.9.2011 and that appellant initiated construction of residential commercial units way back in 2012 and out of which 55 units have already been sold. Whereas, it is evident from record that NA permission for NA use has been availed to the appellant only on 21.1.2013 and, therefore, there cannot be construction in the year 2012. Similarly, it is also evident from record and after arguments by the other side, as it is admitted by the appellant, that their right over the suit property is only leasehold till they made allege payment of sale consideration to the plaintiff and Page 27 of 47 C/AO/398/2014 CAV JUDGMENT therefore their claim of title is not correct. It is also admitted position in the Memo of Appeal itself that prior permission from the original owner before transfer of rights is necessary. Thereby, appellant was aware that even for sublease of the suit property, prior permission of the plaintiff is necessary. What is contended is to the effect that when only a meager amount is to be paid for such permission, it is deemed to be permitted once such an amount is paid to the plaintiff. Surprisingly, a construction company dealing with huge properties at high cost is relying upon their one sided action of making payment of some amount, since it may be a meager amount for them, to consider that once amount is paid directly in the bank account, the property is deemed to be sold to them, even if there is no execution of appropriate documents by the original owner either for granting permission for subleasing in their favour or for sale in their favour. Appellant has also failed to consider that sub lease in favour of M/s. Krishna Pottery Works and defendant nos.1 to 4 are for limited period of two to twenty years and not either for 999 years or for remaining years of total such period of 999 years i.e. 999 years less number of years from the year 1947 till execution of subsequent sub lease. Therefore irrespective of entry in PTR, when defendant nos.1 to 4 had no right or title, in whatsoever manner, to deal with the suit land, except in terms of original lease deed, any action in violation of any term and conditions of original lease deed would certainly bad in law and shall not give or transfer better title in favour of such transferee i.e. present defendant no.5.
44. It is also contended by the appellant that they have issued a Public Notice on 21.1.2011 and obtained title clearance certificate on 11.3.2011 and thereby when plaintiff has failed to Page 28 of 47 C/AO/398/2014 CAV JUDGMENT lodge objection against such Public Notice, now their action is belated and, therefore, there cannot be an injunction in their favour when they sat silent and did not take any steps from the year 2011 till 2014. Suffice it to say that when appellant is aware about the right and title of the original plaintiff over the suit property, nobody has restrained or precluded the appellant from serving a Notice or a copy of a Public Notice directly to the plaintiff disclosing their intention to purchase the suit land. The Public Notice is generally for the purpose of ascertaining the right and title of any unknown person so as to avoid any difficulty in case of claim by such unknown person, whereas, when registered owner having proper title in their favour is known, it cannot be said that only because of Public Notice, right and title of such registered owner has righteous / violated if registered owner fails to lodge an objection. In general, such Public Notice cannot confirm the right and title over the suit property and, therefore, such submission has no substance. However, even if we peruse such Public Notice dated 19.1.2011 and 30.7.2012, it becomes clear that in body of such Notice, there is not a clarity that the land in question is owned by the plaintiff Trust except disclosure of survey numbers of the land in question. Moreover, such Notice specifically states that if nobody comes forward within seven days, then his right over the land would be considered as let gone. Moreover, both such Notices are mainly by the advocate for issuance of title clearance certificate and not for confirming the sale. Therefore, even after such Notice, if any advocate has issued title clearance certificate, then such certificate is required to be scrutinized properly, which can be done during the trial only, to ascertain that how and why the advocate has issued a title clearance certificate when in Revenue Record, name of the plaintiff is shown as Page 29 of 47 C/AO/398/2014 CAV JUDGMENT owner and when proposed seller being defendant nos.1 to 4 could not show their absolute right of ownership on such suit land. It is clear and certain that defendant nos.1 to 4 are holding only leasehold right and, therefore, even if after Public Notice, the title clearance certificate states that the property is freehold, it is a false statement and, therefore, only because of such Public Notice and title clearance certificate , it cannot be said that the appellant has got better title than the plaintiff so also balance of convenience, equity and primafacie case against the plaintiff.
45. So far as issue of not challenging the sale transaction between defendant nos.1 to 4 and defendant no.5 in time is concern, ultimately, if suit is within the limitation, then it can certainly be tilted in favour of plaintiff being a Public Trust, because it cannot be said that all the trustees are supposed to read all Public Notice in all Newspapers to ascertain that whether there is any notice for the trust property holds by the trustee, more particularly, when fact regarding title of the trustee is not disclosed in such Public Notice. It may be a different position to argue if Public Notice discloses that the suit property held by the plaintiff Trust and Trust wants to sell it to the proposed purchaser say; defendant no.5 herein. In any case, the fact remains that though defendant no.5 has tried to show the payment towards sale transaction, infact, there is no transaction entered into by the plaintiff to sell out the suit property in favour of defendant no.5 by accepting any amount, since no sale deed is executed by the plaintiff Trust nor there is a commitment or agreement to execute any such sale deed in favour of defendant no.5. Therefore, there is no substance in the submission of the appellant that because of delay, plaintiff is not entitled to equitable relief.
Page 30 of 47 C/AO/398/2014 CAV JUDGMENT46. It is also contended by the appellant that after gift deed in favour of the plaintiff, if suit property is to be treated as a property of the Trust, atleast in two transactions, thereafter, in favour of M/s. Krishna Pottery Works and ultimately, in favour of its successor, the suit property was not considered as a trust property and no permission of Charity Commissioner was obtained and, therefore, now, suit property cannot be treated as a trust property. Suffice it to say that at present, we are concerned with the interim relief. Thereby, we do not have to decide the suit finally and that even if some mistake/s or error/s as resulted in past, it cannot be treated as a waiver of plaintiff's right over the suit property or only because permission of Charity Commissioner was not obtained in past, now, it is not necessary. On the contrary, on such ground, even previous sub lease in favour of defendant nos.1 to 4 may become illegal. In that case, defendant nos.1 to 4 would have no right whatsoever to enter into sale transaction, which is under challenge in the present litigation. At present, there cannot be a presumption that when plaintiff has not challenged the transaction of the year 1968 1975, now it is not entitled to challenge any such illegal transaction. It is also certain and clear that when appellant has paid certain amount as referred hereinabove towards sale transaction, arrears of rent for thirteen years and `Sakar Najrana,' appellant has never called upon the plaintiff Trust to execute the sale deed in their favour, which confirms that such payment is one sided. When appellant is relying upon the acceptance of rent from Naranbhai Pachabhai Makwana and Laxmanbhai Pachabhai Makwana till the year 1999, surprisingly, appellant does not want to accept the Notice dated 25.2.2000, whereby, lease has been terminated by the plaintiff. However, all Page 31 of 47 C/AO/398/2014 CAV JUDGMENT such issues are to be resolved during trial, but it certainly tilts in favour of the original plaintiff to show that the plaintiff has primafacie case, which results into balance of convenience also in favour of the plaintiff, leaving the issue regarding irreparable loss which will be dealt hereinafter.
47. Surprisingly, there is several contradictions in the pleadings of the appellant itself, inasmuch as, for starting of construction at paragraph 32, it is stated that construction was started in the year 2012, whereas, in ground (F), it is stated that construction has been started in the year 2011. While blaiming the plaintiff that plaintiff has managed to lodge a criminal proceeding in 2014 for a forgery, which was alleged to be committed in the year 2011, and that is hard to believe that the vigilant trust i.e. plaintiff was leased with regards to the Trust property so that it had no knowledge of construction of 140 units project over the suit land. Even if such contradiction may be argued and may be treated as a clerical bonafide mistake, the fact remains that practically appellants are so mindful of their activities, that, they have started the construction well in advance before getting NA permission and before approval of construction.
48. The communication dated 27.8.1997 and 13.9.1997 by defendant nos.1 to 4 to the plaintiff do not help either defendant nos.1 to 4 or defendant no.5. On the contrary, it confirms that defendant nos.1 to 4 does not have absolute right and title over the suit property which they can sell to anybody. Therefore, admitted by defendant no.5 with reference to such piece of evidence does not help him. If it is so, the payment of rent, `Sakar Najrana' and sale price paid in the year 201213 by defendant no.5 should have been paid either by defendant nos.1 Page 32 of 47 C/AO/398/2014 CAV JUDGMENT to 4 and defendant no.5 well in advance before executing a sale deed which is under challenge. However, probably they have failed to realize that there is no confirmation by the plaintiff Trust to enter into sale transaction and to accept such an amount and that there is no proper receipts also.
49. Knowingfullywell about the primafacie case and balance of convenience as discussed hereinabove, defendant no.5 has pressed the last issue on such subject of Interim Relief i.e. irreparable loss. It is contended that even if everything is considered as pleaded by the plaintiff, since plaintiff has failed to take steps for couple of years i.e. from 2011 till 2014 during which appellant has not only started construction but entered into further sale transactions for 55 units and rest of the construction is yet to be completed with finishing of the construction, thereby, appellant has invested a huge amount both, for purchasing the property and for its development and construction as aforesaid and therefore if appellant is not allowed to utilize such property, it would have to suffer a huge loss.
50. In support of such submission, appellant is relying upon the decision of the Apex Court rendered in the case between Mandali Ranganna and Ors. etc. v. T. Ramachandra and Ors. reported in AIR 2008 SC 2291, wherein, Hon'ble the Supreme Court has, while dealing with the provisions of Order 39, Rule 1 and 2 of Code of Civil Procedure regarding grant of injunction, held that while considering the application for injunction, besides consideration of basic elements viz. existence of prima facie case, balance of convenience and irreparable injury, Court must also take into consideration the conduct of the parties observing Page 33 of 47 C/AO/398/2014 CAV JUDGMENT that grant of injunction is an equitable relief. It is further stated that a person who had kept quite for a long time and allowed other side to deal with the properties exclusively, ordinarily such person would not be entitled to an order of injunction and that Court will not interfere only because the property is a very valuable one. It is further held that grant of refusal of injunction has serious consequence depending upon the nature thereof and, therefore, the Court dealing with such matter must make all endeavors to protect the interest of the parties. There cannot be any doubt on such proposition when it is held by the Supreme Court. However, before applying such principle to any case, it would be necessary to realize and understand the facts and circumstances, reason and necessity to say so in such judgment with reference to the facts and circumstances of the case on hand, because any legal proposition cannot be blindly applied without scrutinizing its applicability in a case on hand. If we scrutinize the judgment under reference, it becomes clear that the order impugned before the Hon'ble Supreme Court was allowing the party to make constructions on the suit land with a direction that alienation or creation of an interest would be subject to the decision of the suit. Such order was in a suit for preliminary decree for partition and possession with consequential prayer of permanent injunction to restrain the respondents from alienating or constructing the suit properties. When primafacie respondent was in possession of the properties for a long time, The Court has considered that appellant had never exercised any act to get the possession of the property and during pendency of suit, huge constructions come up on disputed land. Therefore, the Hon'ble Apex Court has said that such huge construction cannot be directed to be demolished atleast at such interim stage. At present, further Page 34 of 47 C/AO/398/2014 CAV JUDGMENT details of the reported case is not material but it is certain that infact it was the opinion of the Hon'ble Supreme Court with reference to above referred factual details that it would not be proper to stop further construction when one of the respondents has spent Rs.3 crores. However, though Hon'ble Supreme Court has stated that conduct of the party is to be taken into consideration while deciding the case finally even Supreme Court has protected the right of the appellant while passing following final order:
"24. We, therefore, are of the opinion that the interest of justice would be subserved if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The trial Court is requested to hear out and dispose of the suit as early as possible. If any third party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is subj judice and all sales shall be subject to the ultimate decision of the suit. All parties must cooperate in the early hearing and disposal of the suit. Respondents must also furnish sufficient security before learned trial Judge within four weeks form the date which, for the time being, is assessed at Rupees one Crore."
51. Thereby, though Hon'ble Supreme Court has observed that conduct of the parties in not initiating the legal proceedings in time may disentitle to have interim relief in his favour, the Hon'ble Supreme Court has except allowing to complete the construction, practically protected all the rights of the appellant / plaintiff before it. Therefore, what is necessary to scrutinize is the actual cause of delay in fling the suit and if it is either intentional or with ulterior motive or even as a result of negligence on the part of the plaintiff it can certainly be said that in such cases, plaintiff may not be entitled to an equitable relief in form of injunction in his favour. However, in absence of any such reason for not initiating the legal proceedings at the Page 35 of 47 C/AO/398/2014 CAV JUDGMENT earliest, in my opinion, there is no reason to refuse the interim relief if the suit is filed within prescribed period of limitation. In other words, when law of limitation permits the litigant to initiate certain proceedings within certain time limit and if proceedings are initiated within time limit, it cannot be said that such person has kept quite for a long time. No doubt, if litigant is specifically aware about the change or development in the disputed property or if there is an evidence about his knowledge to that extent, it can certainly be said that he kept quite. However, in absence of any such factual details confirming the knowledge of the plaintiff about the activities which are otherwise illegal, on suit property, it cannot be said that he remained quite for a long time.
52. As discussed hereinabove, the factual details are infact different in the present case, inasmuch as, instead of waiting for proper permission and clearance before initiating construction and practically even before getting NA permission and sanction of plan by the local authority, appellant had started construction in the year 201112, as admitted by appellant in its pleadings itself. Thus, the factual scenario is different, inasmuch as it is appellant who has committed wrong and, therefore, a wrong doer cannot take advantage of his own wrong by alleging that other side was not vigilant. So far as knowledge regarding possession and construction is concerned, the fact remains that plaintiff is a Trust and, therefore, they are neither residing nor having physical access to the suit property which was otherwise leased out and is required to be dealt with pursuant to conditions of lease which restricts the sale transaction, which is under reference. Whereas, plaintiff has also categorically pleaded that they came to know about the forgery in getting plan approved by Page 36 of 47 C/AO/398/2014 CAV JUDGMENT local authority and thereafter, they have obtained certain documents through RTI and thereupon, they came to know about the present situation of the suit property wherein appellant has erected some residential commercial construction, and hence they file the suit.
53. At the same time, it cannot be ignored that when plaintiff has come to know about certain sale transaction in favour of some unknown persons whose details are not available with the plaintiff, plaintiff has fairly stated that at this stage, they do not seek disturbance of limited rights of such purchasers or occupants, if any, but for the rest of the properties, plaintiff has prayed for interim relief and there is nothing in the decision under reference by the Hon'ble Supreme Court which restricts the jurisdiction of the Court to issue appropriate directions to protect the rights and interest of the party which is also a mandate of the same judgment and when rights and interest of the parties are to be protected, then there must be an equitable balance which is infact taken care of in the judgment under reference, in Paragraph no.24, as quoted hereinabove. Whereas, in the present case, the same situation is practically confirmed in original lease deed dated 3.5.1947, wherein, while executing the first lease deed itself, it is made clear that the lease holder is permitted to utilize the property in accordance with his requirement including erection of any construction but as and when lease is over, the lease holder is not entitled to claim any right or compensation over any such construction on the suit land. Practically, same is the decision of the Hon'ble Apex Court in the judgment under reference and, therefore, also there is no reason to deviate from such situation.
Page 37 of 47 C/AO/398/2014 CAV JUDGMENT54. Therefore, only because of a judgment under reference permitting the construction, it cannot be said that in all such cases, irrespective of factual and other details, there cannot be interim relief in favour of the plaintiff and thereby to allow the further construction even if there is an order not to demolish the construction which is already completed.
55. However, judgment of Mandali Ranganna (supra) discussed hereinabove has been referred thereafter in the case of Kishorsinh Ratansinh Jadeja v. Maruti Corporation, reported in AIR 2009 SC 2882, wherein, though the concept of allowing construction has been followed, the fact remains that in that case, the plaintiff respondent has slept over its rights for more than 19 years. Therefore, there is a vast difference in factual details of such reported cases and the case on hand.
56. Whereas, the same bench of the Hon'ble Supreme Court (Coram:
Hon'ble Mr. Justice Altamas Kabir and Cyriac Joseph, as they then were) has, in the case of Narendra Kante v. Anuradha Kante, reported in AIR 2010 SC (Supp) 278 though relied upon both above judgments i.e. Mandali Ranganna (supra) and Kishorsinh Ratansinh Jadeja (supra), modified the ultimate result whereby reconstruction to create any third party rights or encumbrances or transfer respective shares in the suit property in any manner, whatsoever, was confirmed though construction was allowed to be continued which is also made subject to the final decision in the suit. It cannot be ignored that in such reported case, also the factual details were different, inasmuch as, one of the party has acted upon as per family partition which was took place in the year 1976, whereas, suit was filed in the year 2006 i.e. after two decades. Eventhough, as stated above, Page 38 of 47 C/AO/398/2014 CAV JUDGMENT prohibitory order to create third party rights etc. has been confirmed by the Hon'ble Supreme Court.
57. Though, at present we are not concerned with the main merits of such reported case, it becomes clear that it was a case where partition was sought for and where one of the coparcners was aware about the development, kept quite for a long time but that is not the situation in the present case, inasmuch as, in the case on hand, the plaintiff is a Trust and suit property has been leased out by lease holder without the knowledge and permission of the Trust.
58. In view of above discussion, the judgment under reference would not rescue the appellant from impugned order. At the most, appellant may be given similar direction as indicated in Paragraph no.24 which is reproduced hereinabove.
59. As against that, respondent plaintiff is relying upon following decisions to confirm that they are entitled to file a suit without permission of the Charity Commissioner and that there is no illegality in the impugned order.
[59.1] Nadiad Nagarpalika, Nadiad v. Vithalbhai Zaverbhai Patel and others, reported in AIR 1980 Gujarat 161, wherein, it was held that;
"Section 50 is an enabling provision. Ordinarily trustees as legal owners are able to file suits for recovery of possession of trust properties. In the general interest of public trust properties, which are close to the heart of the Legislature, a special provision has been made in Section 50 clothing the Charity Commissioner or the beneficiaries of the public trust to institute suits for various reliefs set out in clauses (a) to (h) of Section 50. But for this enabling provision, the Charity Commissioner or the beneficiaries would not be in position to institute such suits. The Charity Commissioner, however, is given power to file such suits Page 39 of 47 C/AO/398/2014 CAV JUDGMENT on his own. The beneficiaries at times might be tempted to raise disputes under the alleged guise of their interest in the trust properties and may at times work encounter to the powers of the trustees. That is why a condition has been imposed on their right to file such suits and the condition is that they must procure the permission of Charity Commissioner before they embark on such litigation under the assumed colour of safeguarding interests of public trust. The substantial portion of Section 50, therefore, is to be confirmed to the power of Charity Commissioner and the power of the beneficiaries to institute suits enumerated in clauses (a) to (h) where the background is one depicted in clauses (i) or (ii) or (iii) of the initial part of Section 50. The proviso is a sort of restriction placed on the powers of the Charity Commissioner and on the powers of the beneficiaries of the trust who are designated by Section 50 as trustees. The idea paramount in the mind of the Legislature is to clothe the Charity Commissioner or minimum of two or more persons having interest in the trust to institute suits of the nature even dehors the trustees, such situation ordinarily would arise when the trustees are remiss or slack in their duties. Section 50, therefore, could not have been intended to impose an embargo on the general power of the trustees to file suits for recovery of possession of trust property either from tenants or licensees or from trespassers. A suit for recovery of possession of land by trustees of public trust against trespasser, without obtaining permission of Charity Commissioner is maintainable."
[59.2] Huseinmiya Safimiya v. Habibsha Hasamsha Fakir, reported in 1985(2) GLR 928, wherein Division Bench of this High Court has held that;
"It must be kept in view that as per Sec. 36 of the Bombay Public Trusts Act, no immovable property of a public trust can be alienated in favour of any one by a trustee without express permission of the Charity Commissioner. And if such alienation is made, it shall be invalid. Admittedly, no such permission was taken in the present case. Consequently the transaction entered into by defendant no.2 in favour of the present appellant remained null and void and not binding on the trust.
It is submitted that the suit was not maintainable in view of the document dated 13.12.1962 as it was not got declared null and void by the plaintiffs. There is no impediment in the way of the plaintiffs in straightway filing a suit for possession against the appellant who according to them, is a trespasser on the suit land when the plaintiffs contend that the document Page 40 of 47 C/AO/398/2014 CAV JUDGMENT under which lie is alleged to have been inducted was not binding on the plaintiff trust. It was not necessary for the trustees to sue for getting such a declaration and then to file the suit for possession. This is not a voidable document to which the trust was a party. This document merely represented an abortive attempt on the part of defendant no.2 in trying to alienate the trust property in favour of an unauthorized person. Such a document which was not binding on the public trust cannot impose any impediment in the way of the trustee in suing for possession on the strength of title against the trespasser like the appellant."
[59.3] G.R. Gusai (Deceased) by heir Vinodgarji Govindgarji Gusai v. Manhargiri Gagangiri Gusai and others, reported in 2011(1) GLR 392, wherein, it is held that;
"It is mandatory to obtain permission under Section 36 of the Act once any transaction is entered into by the party by way of sale, lease or by any other mode of transfer. In the present case, prima facie, though no permission was granted by the Charity Commissioner under Section 36, properties were transferred by the defendant No.1 to the defendant No.2 clearly indicating breach of Section 36 and hence, it was rightly held by the trial court that lease deed Ex.81 executed between the defendants on 29101976 was void and defendant No.2 was in illegal possession of the suit property pursuant to the sale deed. (Para 7) It is an admitted fact that after execution of the lease deed Ex.81 dated 29101976, School was constructed on the said land wherein 412 girls are studying at present in the classes from Standards 5th to 8th Learned counsel, Mr.Nanavati, therefore, submitted that this is the only Girls School in the area and hence, in the interest of girl students, some arrangements are required to be made. (Para 8) The original defendant No.2 will hand over vacant and peaceful possession of the suit property to Gusai Panch Trust by 31st May, 2011, irrespective of any decision that will be taken by the Charity Commissioner in the application which will be submitted by the defendant Trust under Section 50 of the Act as early as possible and it will not be withdrawn by the Trust. When such an application is moved, the Charity Commissioner will decide the same at the earliest in accordance with law and Page 41 of 47 C/AO/398/2014 CAV JUDGMENT without being influenced by this judgment. If the decision is not in favour of the defendant Trust, the Trust will see to it that the girl students presently studying in the School run by it are accommodated in its other Schools. (Para 10)"
60. The cumulative effect of all above discussions on facts and law points makes it clear that there is existence of primafacie case and balance of convenience in favour of plaintiff so also the irreparable injury would be caused to the plaintiff in absence of interim relief as granted by the trial Court vide impugned order.
61. However, grant of interim relief would also result into inconvenience, loss of injury to the appellant inasmuch as appellant has erected some construction and entered into sale transaction for as many as 55 units to different individuals. Therefore, considering the judgment in the case of G.R. Gusai (supra) and Mandali Ranganna (supra), appellant is entitled to have some protection, though it is not entitled to full protection only on the ground of delay in filing the suit by the plaintiff, inasmuch as, though suit is filed after some time, it cannot be said at such stage that it was either because of some motive or because of negligence on the part of the plaintiff. So also delay in filing the suit by the plaintiff Trust cannot be considered as a negative conduct of the plaintiff Trust to hold that it would not be entitled to an order of injunction, as observed in the case of Mandali Ranganna (supra). In other words, plaintiff's conduct cannot be blamed or it cannot be said that plaintiff Trust has not approached the Court with clean hands. On the contrary, conduct of the appellant can certainly be blamed when they have started the construction well before the NA permission and approval of construction and though knowingfullywell that suit property is lease hold property, tried to purchase it as absolute Page 42 of 47 C/AO/398/2014 CAV JUDGMENT right of ownership without prior permission of the Charity Commissioner and even without express knowledge and consent of the plaintiff Trust being real owner of the suit property. It is also evident that appellant has unanimously tried to make a show that they have purchased the property with absolute right by depositing certain amount in the Bank account of the plaintiff Trust but did not bother to get execution of sale deed in its favour by and from the Trust. It is also evident that primafacie plaintiff Trust is able to show that defendants have created forge documents to show that plaintiff has no objection for such construction. Therefore, appellant is certainly not entitled to the full benefit of the observations in the case of Mandali Ranganna (supra). However, considering the judgment in the case of G.R. Gusai (supra) and Mandali Ranganna (supra), it would be appropriate to protect the interest of the appellant when it is evident from record that it has purchased the suit land from defendant nos.1 to 4 and erected some construction and also entered into some sale transaction for certain units to individual different persons as discussed hereinabove.
62. It is also relevant to refer the judgment of Hon'ble Supreme Court in the case of Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass, reported in AIR 2005 SC 104. With due respect, it is to be noted that such judgment is neither overruled nor distinguished and even not referred in the judgment cited by the appellant namely; Mandali Ranganna (supra), when it was followed in the case of Kishorsinh Ratansinh Jadeja (supra) and Narendra Kante (supra). If we peruse the cited judgment in case of Maharwal Khewaji Trust (Regd.) (supra) under reference, it becomes crystal clear that Hon'ble Supreme Court has categorically confirms that only because legal proceeding are Page 43 of 47 C/AO/398/2014 CAV JUDGMENT likely to take a long time would not result into granting the permission to the party to change the nature of the property by putting up construction or by permitting alienation of the property. The relevant paragraph no.10 reads as under:
"Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."
This judgment has been relied upon in following cases:
[a] N.Srinivasa v. M/s. Kuttukaran Machine Tools Ltd., reported in AIR 2009 SC 2217.
[b] State of M.P. v. Dharasingh, reported in 2009 (11) SCC
124.
[c] Kishorsinh Ratansinh Jadeja v. Maruti Corporation, reported in 2009 (11) SCC 229.
[d] Narendra Kante v. Anuradha Kante, reported in AIR 2010 Page 44 of 47 C/AO/398/2014 CAV JUDGMENT (2) SCC 7.
63. In view of above facts and circumstances, the appeal is partly allowed by modifying the impugned order in following terms though there would be prohibitory order against the appellant;
[A] So far as order to maintain statusquo qua construction of the suit land is concerned, it is modified to the effect that appellant is permitted to complete the construction so as to avoid any mishap because of the part and / or incomplete construction. The same is subject to ultimate decision of the suit. [B] So far as prohibitory order restraining the appellant from further selling, transferring, assigning, alienating, mortgaging, letting or subletting the suit land and the construction including the remaining units thereupon or in any way creating third party interest or any further charge or encumbrances in favour of third party in respect of the suit land and the construction thereupon is concerned, it is modified to the extent that appellant can enter into any transaction but it should be limited to its scope as permitted under the original lease deed dated 3.5.1947 and in any case, no such transaction would results into creation of any further right than the right as a sublease and in accordance with the provisions of lease deed dated 3.5.1947 only. For all such transaction, the deed in question shall clearly stipulate that the matter is sub judice disclosing the facts and details of the impugned order as well as this order and shall be subject to ultimate decision of the suit. Thereby, it is made clear and shall be declared in one and all transaction herein after that all agreements and deeds pertaining to the suit land after 25.2.2000, when plaintiff has cancelled the lease agreement, may be declared as null and void Page 45 of 47 C/AO/398/2014 CAV JUDGMENT in appropriate proceedings and in that case pursuant to terms and conditions of a lease deed dated 3.5.1947, the plaintiff Trust may be entitled to recover the possession of the suit land without any claim of compensation, damages etc. for construction or development of the suit land by its occupants. [C] The appellant has to furnish a security to the tune of Rs.3 Crores pursuant to similar direction by the Hon'ble Supreme Court in the case of Mandali Ranganna (supra) before the learned trial Judge within eight weeks from the date of this order.
[D] The appellant is further directed to submit a quarterly Report of the suit land regarding development and construction over the suit property and shall file copies of all transactions that may be entered into by it hereinafter with a disclosure about the financial transactions.
[E] Except above modification, the impugned order is confirmed.
64. In view of above, the appeal is disposed of. In view of disposal of Appeal From Order, Civil Application does not survive and hence the same stands disposed of accordingly.
(S.G.SHAH, J.) DATE: 15.10.2014 FURTHER ORDER
65. Learned advocate for the respondent is seeking to stay the operation of this order, so as to enable the respondent to approach appropriate Court. Considering the facts and Page 46 of 47 C/AO/398/2014 CAV JUDGMENT circumstances, as well as directions, which are in terms of the judgment of the Hon'ble Supreme Court, there is no reason to stay the operation of this order. Hence, request is rejected.
(S.G.SHAH, J.) VATSAL Page 47 of 47