Gujarat High Court
Ranjit Dhirajlal Desai vs Nitaben D/O Mehmoon Dhirajlal ... on 20 March, 2024
NEUTRAL CITATION
C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 12 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 12 of 2023
With
R/APPEAL FROM ORDER NO. 13 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 13 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== RANJIT DHIRAJLAL DESAI & ORS.
Versus NITABEN D/O MEHMOON DHIRAJLAL GULABBHAI DESAI W/O NITINBHAI THAKORBHAI DESAI & ORS.
========================================================== Appearance:
APPEAL FROM ORDER NO.12 OF 2023:
for the Appellant(s) No. 4.3 DECEASED LITIGANT for the Appellant(s) No. 4 MR BS PATEL, SENIOR ADVOCATE WITH MR CHIRAG B PATEL(3679) for the Appellant(s) No. 1,2,3,4.1,4.2,4.4 MR MEHUL S SHAH, SENIOR ADVOCATE WITH MR MANAN A SHAH(5412) for the Respondent(s) No. 1,2 Page 1 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined APPEAL FROM ORDER NO.13 OF 2023:
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MS TRUSHA PATEL, SENIOR ADVOCATE WITH MR NISARG RAVAL for the Appellants. MR MEHUL S SHAH, SENIOR ADVOCATE WITH MR MANAN A SHAH(5412) for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT Date : 20/03/2024 ORDER CAV JUDGMENT
1. These Appeals From Orders are preferred under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (`CPC' for short). Appeal From Order no.12 of 2023 is filed by the original defendant nos.2 to 4 being aggrieved by the order dated 12.1.2023 passed below Exh.5 in SCS No.16 of 2022 (Old RCS No.98 of 2020) by the learned Principal Senior Civil Judge, Valsad, whereby the applicant Exh.5 preferred by the original plaintiffs seeking injunction against the defendants came to be allowed. Being aggrieved by the very same order, defendant no.5 has filed the Appeal From Order No.13 of 2023.
2. As both these appeals are arising out of the same order, the facts are same and the arguments advanced are also same, they were ordered to be tagged together by a previous order dated 1.2.2023. Accordingly, they are heard together and disposed of by this common judgment. The Page 2 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined parties are referred to hereinafter by their original status of plaintiffs and defendants for the sake of convenience.
3. The brief facts leading to filing of these appeals, as stated in the memo of appeals are such that the opponents-original plaintiffs filed Special Civil Suit No.16 of 2022 (Old RCS No.98 of 2020) for partition, declaration, permanent injunction and also for accounts against the defendant nos.1 to 4 (who are the brothers of the plaintiffs) and against the defendant no.5 who is subsequent purchaser;
that on 10.5.2019 and 22.1.2020, the appellants herein entered into an agreement to sale for the suit property with defendant no.5, originally the said property was an agricultural land which was subsequently converted into non- agriculture land and at present, the defendant no.5 is putting up the construction over the said property. It is averred that along with the said suit, application Exh.5 was also preferred by the plaintiffs to which the defendants opposed and after hearing the said application, the learned trial Court has allowed the said application at Exh.5 vide order dated 12.1.2023. The defendant nos.1 to 4 and defendant no.5 gave applications at Exh.78 and 79 respectively, praying to stay the said order to approach the higher forum, which was allowed and the order passed below Exh.5 was stayed for 20 days.
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NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined These appeals from order were filed and when listed, notice was issued and the said order of staying the impugned order passed below Exh.5 application is continued from time to time by various orders passed by this Court.
4. Heard learned advocates for the parties. 4.1 Learned senior advocate Mr.Mihir Thakore with learned senior advocate Ms.Trusha Patel with learned advocate Mr.Nisarg Raval for the appellants of Appeal From Order no.13 of 2023 has submitted that the dispute is with regard to the land bearing Survey No.130/2 (Block No.523) admeasuring 11,176 sq.mtrs of village Atakpardi, Taluka and District Valsad (hereinafter referred to the `the disputed land' for the sake of brevity); that the plaintiffs are sisters of defendants nos.1-4; that the impugned suit is filed by the plaintiffs contending that the disputed land along with other properties mentioned in paragraph 1 of the plaint were ancestral properties and they have share in the same; that a notarized undertaking dated 23.4.2018 was executed by plaintiffs and it was agreed that the defendants nos.1 to 4 would give some amount to the sisters and upon receipt of the same, the sisters would relinquish their rights qua the disputed land; however, no such amount is received by them Page 4 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined and therefore the registered relinquishment deed dated 7.5.2018 executed by them was under undue influence; that the Mutation entry which was posted pursuant to the relinquishment deed was also posted and certified without following due process of law and therefore the registered agreements to sell dated 10.5.2019 and 22.1.2020 executed by the defendants no.1 to 4 are also illegal and not binding to them. He submitted that with the said pleadings, the plaintiffs had filed the said suit.
4.2 Learned senior advocate Mr.Thakore submitted that as the plaintiffs doubted the genuineness of agreement to sale on the ground that the defendants had shown very high sell price, the defendant no.5 had shown readiness and willingness to deposit the market price of alleged share of the plaintiffs at Jantri price before the Court; that the defendant nos.1 to 4 had handed over the possession to defendant no.5 and the said defendant had floated a project in it. He submitted that from the recording obtained from the office of sub-registrar, it clearly establishes that the plaintiffs had voluntarily, with full understanding, in presence of their husband executed relinquishment deed before the sub-registrar. Referring to this, learned senior advocate Mr.Thakore submitted that Section 50 of the Registration Act says that registered document prevails over unregistered Page 5 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined document and Article 49 Schedule 1 of the Gujarat Stamp Act specifies that stamp of only Rs.100 is required to be affixed while registration. The sub-registrar's endorsement is a proof of facts stated in the deed.
4.3 Learned senior advocate Mr.Thakore submits that the plaintiffs claim to be in possession of the disputed property but they did not give any application to draw panchanama and when the defendant no.5 gave such application, the same was objected by the plaintiffs. The panchanama shows that the construction is carried out by defendant no.5. He submitted that the possession is handed over by the defendant nos.1 to 4 to defendant no.5, which is not disputed and there is no reason for the learned trial Court to disbelieve handing over the possession only on the ground that the Agreement to sell does not reflect so. He submitted that there is no prohibition to hand over the possession after execution of agreement to sell, if the parties so wished to and even the quantum of compensation paid has also no relevance when it comes to handing over the possession, particularly, when the defendant nos.1 to 4 did not so dispute.
4.4 Learned senior advocate Mr.Thakore submitted with regard to the Mutation Entry that the notices under Page 6 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined Section 135D of the Bombay Land Revenue Code were issued, served, acknowledgment receipts were duly signed and then only the entry was certified, which entry is not challenged by the plaintiffs before the revenue authorities and hence, the point raised in the suit regarding this could not have been considered by the learned trial Court while granting the impugned application at Exh.5.
4.5 Learned senior advocate Mr.Thakore has further submitted that equity is created in favour of the defendant no.5, that too, after one year of execution of registered relinquishment deed and the appellant has put up huge construction and has spent huge amount.
4.6 Learned senior advocate Mr.Thakore has submitted that the defendant no.5 is a bonafide purchaser who has paid huge amount pursuant to the agreement to sale and also when the registered relinquishment deed is executed by the objectors- original plaintiffs, such filing of the said suit is nothing but an arm twisting technique. He has further submitted that the said agreement to sale is executed in favour of the present appellant. The Deed of Relinquishment is also executed by the plaintiffs whereby at the time of registration, the plaintiffs have admitted before the sub- registrar that the consideration is received by them and Page 7 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined therefore the present suit proceeding is filed with a view to harass the defendant no.5, that too after a long delay of 1 ½ years after arising of such alleged cause of action, for snatching more money. He submitted that the registered deed of relinquishment is executed on 10.5.2019 and the suit for its cancellation is filed after 17 months and the learned trial Court ought to have considered that even if the suit is filed within limitation, the injunction is not to be granted if there is delay in approaching the Court.
4.7 Learned senior advocate Mr.Thakore has drawn my attention towards the NA permission and the agreement to sale which is executed in favour of the defendant no.5 and submitted that at no point of time, the plaintiffs have raised any objection. Not only that even the entries in revenue record is also effected and the notices under Section 135D were also served on the plaintiffs and at that point of time also, they have not raised any objection and therefore the plaintiffs cannot be permitted to take undue advantage of the situation. He, therefore, submitted that the factor of prima facie case and balance of convenience is also in the favour of the defendant no.5 and not the plaintiffs. 4.8 Learned senior advocate Mr.Thakore has submitted that considering all these factors, the Court has to allow this Page 8 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined appeal and interfere with the impugned order by exercising powers under Order 43 Rule 1 read with Section 104 of the CPC as prima facie it is made out that relinquishment deed dated 7.5.2018 is registered document and the Court cannot ignore such registered document.
4.9 In support of his submissions, learned senior advocate Mr.Thakore has relied on the following citations:
(1) Simiben @ Chimiben D/o Naranbhai Kalabhai & Anr., reported in 2010(1) GLR 663 (2) Pramukhkrupa Enterprise Through Managing Partners V/s Kunverben Chaturdas Patel Thro poa Mahendrabhai C Patel, reported in 2015(1) GLR 169 (3) Veetrag Holdings Private Limited V/s Gujarat State Textile Corporation Limited reported in 1996(3) GLR 536 (4) Rattan Singh & Ors. V/s Nirman Gill & Ors. Etc. in Civil Appeal Nos.3681-3681 of 2020 (5) Prem Singh V/s Birbal reported in AIR 2006 SC 3608 (6) Jamila Begum (D) Thr.Lrs. V/s Shami Mohd.(D) Thr.Lrs.
Reported in AIR 2019 SC 72.
(7) Ranganayakamma And Another V/s K.S.Prakash (Dead) by Lrs. And others reported in 2008(15) SCC 673 (8) Kuppuswami Chettiar V/s Arumugam Chettiar and Another reported in AIR 1967 SC 1395 Page 9 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined (9) Thayyil Mammo And Another V/s Kottiath Ranunni And others, reported in AIR 1966 SC 337.
5. Learned senior advocate Mr. Patel appearing for original defendants no.1 to 4 who are the appellants in the Appeal No.12 of 2023 submits that he is supporting the defendant no.5-appellant of Appeal From Order 13 of 2023 for whom learned senior advocate Mr.Thakore is appearing. He submits that the defendant no.5 is the person to whom the defendant nos.1 to 4 have sold the property in question. 5.1 Learned senior advocate Mr.Thakore has submitted that the defendant no.5 is willing to pay the entire amount of the agreed by way of agreement before the court and also has submitted that even if the claim of the plaintiffs is to be considered, then also, there are several parcels of the land where there are no sale transactions taken place and are still available for the plaintiffs for their share and therefore the plaintiffs have no case on merits. Learned senior advocate Mr.Patel has, by referring to the said contention raised by learned senior advocate Mr.Thakore, further added that the relinquishment deed is dated 7.5.2018 which was registered and thereafter after almost a period of 1 ½ years, the plaintiffs have preferred the suit, therefore, the delay itself is required to be considered for not granting interim Page 10 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined injunction against the defendants.
5.2 Learned senior advocate Mr.Patel has further submitted, by drawing attention towards the notice issued under Section 135D before the entry was certified which clearly indicates that the notice is served on the plaintiffs, and submitted that thereafter also, the plaintiffs have remained silent and therefore the sudden waking up after a period of more than 1 ½ years, clearly indicates the intention of the plaintiffs to snatch more money under the guise of such litigation from the subsequent purchaser. He has further submitted that if the plaintiffs had no objection at the relevant point of time, they cannot rely on merely terms of MOU without referring to the subsequent document i.e. relinquishment deed executed by the plaintiffs. If the plaintiffs would not have received any amount towards the sale consideration or their share, then naturally no prudent man will sign the document and that too by stating that the consideration is received by them. That such relinquishment deed is required to be considered which is a subsequent one and registered document and therefore the rights of the parties are now crystallized in view of the above mentioned documents and the plaintiffs have no locus to file the suit and pray for the prayers made in the suit. He, therefore, prays to allow this appeal from order by interfering with the Page 11 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined impugned order.
5.3 In support of his submission for delay and laches, learned senior advocate Mr.Patel has relied on the judgment in the case of Harshadkumar Kantilal Bhalodwala and Anr.V/ s Ishwarbhai Chandubhai Patel and Ors, reported in 2010(2) GLR 1041 by submitting that such delay, laches is fatal for such injunction and more particularly, when the plaintiffs can be compensated in terms of money, no such injunction can be granted.
6. Per contra, learned senior advocate Mr.Shah for the original plaintiffs in both the appeals has opposed these appeals from order. He submitted that the suit is filed by the plaintiffs for partition, separate, possession, cancellation of relinquishment deed, two agreements to sale, permanent injunction and other ancillary reliefs on the specific case that the plaintiffs are lineal descendants of Dhirajlal Gulabbhai and they are having 1/3rd share in all the disputed properties and they also claim to be in possession of the property as co-sharers. He submitted that with regard to the properties mentioned in paragraph 1A, no arguments are advanced as the original defendant nos.1 to 4 have made a statement to maintain status-quo qua the same. Page 12 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024
NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined 6.1 He submitted that as regards the property mentioned in paragraph 1B, on 23.4.2018, an undertaking was entered into between the plaintiffs and defendant nos.1 to 4 that they will pay certain amounts to the plaintiffs and on such payment, they will relinquish their rights. He submitted that there is no averment made by the defendants in the written statement that any amount has been paid towards sale consideration to the plaintiffs. He submitted that the agreement was dated 23.4.2018 and they were called on 7.5.2018 to execute a registered deed so as to put the undertaking in executable format; that as per the instructions given by the defendants, they answered in the affirmative before the Sub-Registrar that they have received the amount of consideration, though the document was titled as `relinquishment deed without consideration'. He submitted that in law the relinquishment deed cannot be looked into for evidence as the same is directly in contravention of Section 34 of the Gujarat Stamp Act, 1958. He submitted that the Hon'ble Apex Court has held that such a release/relinquishment deed is nothing but a gift deed and as per the Gujarat Stamp Act it has to be properly stamped to consider the same into evidence, whereas in the present case, the deed is executed on a stamp paper of Rs.100/- and therefore the same has no evidentiary value and it is not admissible in evidence. He submitted that the specific Page 13 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined pleadings in the plaint as regard to how the plaintiffs have been duped by coercion and pressure can always be considered for setting aside the relinquishment deed after full-fledged trial.
6.2 As regards service of Notice under Section 135 of the Bombay Land Revenue Code, learned senior advocate Mr.Shah has submitted that it is specifically stated that the same was served on a third party before deleting the names of plaintiffs vide the mutation entry in pursuance of purported released deed and it is not coming on the record as to who was that lady on whom the notice was served and as the names of the plaintiffs were deleted from the revenue records, the plaintiffs were not aware about any subsequent entries including entries in respect of development permission, NA permission etc. and came to know about the same only after 6.10.2020.
6.3 As regards the agreement to sale executed by the defendant nos.1 to 4 in favour of defendant no.5, learned senior advocate Mr.Shah has submitted that the registered agreement to sale is executed by the defendant nos.1 to 3 in favour of the defendant no.5 on 10.5.2019 whereas the registered agreement to sale is executed by defendant no.4 in favour of defendant no.5 on 22.10.2020 i.e. after a period of Page 14 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined 17 months. As regards giving away the possession to defendant no.5, he submitted that it is unbelievable fact that the defendant nos.1 to 4 have handed over the entire possession of property to the agreements to sale holders by accepting a meagre amount. He added that there is no document which shows that possession was handed over to the defendant no.5-purchaser qua one of the properties and in fact, there is a specific condition in the agreement to sale that possession shall not be handed over until the sale deed is executed.
6.4 Learned senior advocate Mr.Shah, by referring to Section 54 of the Transfer of Property Act, submits that the agreement to sale by itself does not create any interest in or charge on such property except the right of executing sale deed on that basis. The only right created in favour of the agreement to sale holder is to pray for specific performance of said agreement to sale. He submitted that no suit for specific performance has been filed by the defendant no.5; that the entire construction put up by the defendant no.5 is made at their own risk and peril, as is stated by defendant no.5 before the learned lower court, and therefore now they cannot claim any equity before this Court for the construction made during the pendency of the suit. He submitted that the learned trial Court has rightly passed the order of status-quo Page 15 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined so that the property is preserved and not wasted away and therefore, the impugned order is appropriate and need not be interfered with. He, therefore, prayed to dismiss these appeals from orders.
6.5 In support of his submissions, learned senior advocate Mr.Shah has relied on the following citations:
(1) Kuppuswami Chettiar V/s Arumugam Chettiar and Another reported in AIR 1967 SC 1395, paragraph 4.
(2) Venigalla Koteswaramma V/s Malampati Suryamba and Others, reported in 2021 (4) SCC 246, paragraph 40 (3) Wander Ltd. And Anr. V/s Antox India Pvt.Ltd. Reported in 1990 Supp SCC 727 (4) Skyline Education Institute (Pvt.) Ltd. V/s S.L.Vaswani and Anr. Reported in AIR 2010 SC 3221 (5) Maharwal Khewaji Trust (Regd.) Faridkot V/s Baldev Dass, reported in AIR 2005 SC 104 (6) Dev Prakash and Anr. V/s Indra and Ors., reported in AIR 2017 SC 3608 (7) Bina Murlidhar Hemdev V/s Kanhaiyalal Lokram Hemdev reported in 1999(3) Scale 730
7. Heard learned advocates for the parties, perused the impugned order and considered the material produced on Page 16 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined record.
8. The relevant provisions which are required to be referred to for the purpose of deciding these appeals are as under:
"Section 54 of the Transfer of Property reads as under:
54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-
promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Section 22 of the Hindu Succession Act which reads as under:
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22. Preferential right to acquire property in certain cases.--
(1)Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2)The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3)If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.Explanation.--In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf."Page 18 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024
NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined Section 34 of the Gujarat Stamps Act which reads as under:
34. Instruments not duly stamped in admissible in evidence etc.-
No instrument chargeable with duty[(not being an instrument referred to in sub-section (1) of section 32A),]shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped :
Provided that-
(a) any such instrument not being an instrument chargeable with a duty of twenty naye paise and less shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;Page 19 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024
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(c) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other then a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898);
(d) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act. Section 135-D of the Gujarat Land Revenue Code reads as under:
135D. Register of mutations and register of disputed cases.
[(1) The village accountant shall enter in a register of mutations every report made to him under section 135C or any intimation of acquisition or transfer of any right of the kind mentioned in section 135C received from the Mamlatdar or a Court of Law.] (2) Whenever a village accountant makes an entry in the register of mutations he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavdi, and shall give written intimation to all persons appearing from the record of rights or register of mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein.Page 20 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024
NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined (3) Should any objection to any entry made under sub- section (1) in the register of mutations be made [***] in writing to the village accountant, it shall be the duty of the village accountant to enter the particulars of the objection in a register of disputed cases [and to give a written acknowledgement of the receipt of such objection to the person making it.] (4) Orders disposing of objections entered in the register of disputed cases shall be recorded in the register of mutations by such officers and in such manner as may be prescribed by rules made by the [ [State] Government] in this behalf. (5) The transfer of entries from the register of mutations to the record of rights shall be effected subject to such rules as may be made by the [[State] Government] in this behalf:
provided that an entry in the register of mutations shall not be transferred to the record of rights until such entry has been duly certified.
(6) Entries in register of mutations how to be certified. -
Entries in the register of mutations shall be tested and if found correct or after correction, as the case may be, shall be certified by a revenue officer of rank not lower than that of a Mamlatdars' first Karkun.
(7) Tenancies. - The provisions of this section shall apply in respect of perpetual tenancies and also in respect of any tenancies mentioned in a notification under subsection (2) of section 135-B, but the provisions of this section shall not Page 21 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined apply in respect of other tenancies, which shall be entered in a register of tenancies, in such manner and under such procedure as the [[State] Government] may prescribe by rules made in this behalf.
Sections 49 and 50 of the Registration Act read as under:
49. Effect of non-registration of documents required to be registered.--
No document required by section 17 1 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 2 , 3 *** or as evidence of any collateral transaction not required to be effected by registered instrument.]
50. Certain registered documents relating to land to take effect against unregistered documents.-- Page 22 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024
NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined (1) Every document of the kinds mentioned in clauses (a),
(b), (c) and (d) of section 17, sub-section (1), and clauses (a) and (b) of section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.
(2) Nothing in sub-section (1) applies to leases exempted under the proviso to sub-section (1) of section 17 or to any document mentioned in sub-section (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act. Explanation.--In cases, where Act No. 16 of 1864 or the Indian Registration Act, 1866 (20 of 1866), was in force in the place and at the time in and at which such unregistered document was executed, "unregistered" means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act.
Order 39 Rule 1 and 2 of CPC which read as under:
"1. Cases in which temporary injunction may be granted.-- Where in any suit it is proved by affidavit or otherwise--Page 23 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024
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(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.
--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
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NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
[2A. Consequence of disobedience or breach of injunction.--(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.] Order 43 Rule 1 read with Section 104 of CPC which reads as under:
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NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined
1. Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely:
--
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];
(c) . an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(f) an order under rule 21 of Order XI;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
[ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set Page 26 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;1
[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);
(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re- admit, or under rule 21 of Order XLI to re-hear, an appeal; (u) an order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(w) an order under rule 4 of Order XLVII granting an application for review."
104. Orders from which appeal lies.--(1) An appeal shall lie from the following orders, and save as otherwise expressly Page 27 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined provided in the body of this Code or by any law for the time being in force, from no other orders:--
[(ff) an order under section 35A;] [(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.] (2) No appeal shall lie from any order passed in appeal under this section."
9. Now, if the facts of the case on hand, as can be collected from the material on record, are perused, the plaintiffs and defendants nos.1 to 4 are sisters and brothers; that they entered into a Memorandum of Understanding (`MOU' for short) that the plaintiffs will have to relinquish Page 28 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined their rights on receipt of some consideration; the notice under Section 135D is issued before deleting the names of the plaintiffs; the relinquishment deed is prepared and executed; it is stated before the Sub-Registrar that the plaintiffs have received the consideration and therefore they are relinquishing their rights; that the defendant nos.1 to 4 have sold the property to defendant no.5; the possession is handed over to the defendant no.5; that on the date of the suit, the disputed property was dug up by the defendant no.5 with a view to construct; that now the construction of three storeyes is already put up on the disputed land, as fairly submitted by learned senior advocate Mr.Thakore during the course of arguments; that the plaintiffs filed the suit seeking various reliefs by stating that the plaintiffs did not receive any amount as per the MOU and the relinquishment deed is executed under cooercion, pressure and by misrepresenting the contents, along with an application for interim injunction, which application was allowed by the impugned order passed by the learned trial Court.
10. Now, as regards the submissions made by learned senior advocates for the appellants, there is no doubt about the fact that the plaintiffs have approached the Court beyond the period of 1 ½ years of the relinquishment deed is executed. However, for that, the plaintiffs have indicated the Page 29 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined circumstances in the plaint itself which prima facie is required to be considered and perused for the purpose that whether the plaintiffs are vigilant to pursue their remedy. It transpires that the plaintiffs are residing at different place other than where the property is situated. The plaintiffs are married sisters and admittedly the plaintiffs are co-owners as properties are ancestral and considering the provisions of Section 22 of the Hindu Succession Act also, in the facts of the present case, the defendants who happen to be the brothers of the plaintiffs cannot sell the property of joint ownership without the written consent and without paying any amount of consideration to the plaintiffs. Therefore, considering all these aspects, prima facie, the plaintiffs have established their case in the plaint by averring necessary averments in the plaint itself as well as Exh.5 application which clearly indicate that the prima facie case about the right of the plaintiffs is jeopardized by the action of the defendants.
11. The submissions made by learned senior advocate Mr.Shah for the original plaintiffs, by referring to paragraphs 19 and 22 of the plaint, that there is nothing on record to show that that any amount is paid towards the consideration though it is specifically mentioned in the MOU executed between the parties prior to the execution of the Page 30 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined relinquishment deed that such amount is required to be paid and that Section 135D notice issued under the Bombay Land Revenue Code is not received by both the plaintiffs and somebody has signed the notice are required to be contested at the time of trial.
12. Further, the agreement to sale cannot confer any right, title or interest to the party concerned in absence of payment of entire sale consideration and valid document which is registered in accordance with law, no sale deed is executed between the defendants, there is nothing on record to show that the possession is handed over to the defendant no.5, the defendant no.5 has not filed any proceeding for specific performance of the agreement to sale and execution of sale deed, the development permission which is allegedly produced on the record by the defendants in support of their case is merely a resolution passed by the village panchayat and no actual development permission granted by any authority is produced on the record, then under which authority the defendant no.5 has started the construction over the land in question, knowing fully well that the dispute is going on between the parties. At the time of suit, merely the disputed land was dug up and thereafter they have acted in high handed manner and taken risk by putting up further construction to three storeyed level, which itself creates Page 31 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined prejudice to the rights of the plaintiffs and therefore such contention raised by learned senior advocate Mr.Patel that there is no prima facie case or balance of convenience in favour of the plaintiffs or the plaintiffs can be compensated in terms of money is not helpful to the defendants. The apprehension of the plaintiffs that if the disputed land is sold and further right is created by third party there will be more complication in the proceedings seems to be coming true in view of the construction put up by defendant no.5 and the learned trial Court has rightly considered all these aspects.
13. As regards the submission that the relinquishment deed is executed pursuant to the MOU which is registered, there is no doubt that the relinquishment deed is registered and the presumption is that the registered document is prima facie valid in the eye of law. However, when the plaintiffs have raised the serious dispute of the relinquishment deed itself by alleging that it is executed under undue pressure and misrepresenting the contents of the same which amount to fraudulent transaction which needs to be decided in a full- fledged trial by producing documentary evidence and therefore the status-quo has to be granted for land in question during such trial, which is granted by the learned trial court with a view to to avoid multiplicity of proceedings. Thus, the learned Page 32 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined trial Court has rightly exercised its discretion and it cannot be said that the learned trial Court has not used its discretion judiciously and no infirmity or illegality is found in the findings given by the learned trial Court.
14. The learned trial Court cannot infer anything at this stage more particularly while considering the prima facie case, balance of convenience and irreparable loss on the basis of such document. All these arguments are required to be considered by the learned trial Court at the time of full fledged trial that whether the defendants have right to execute any agreement to sale and thereafter the subsequent purchaser vendee has right to construct on the property in question on the basis of such agreement of sale more particularly when the suit proceedings are pending, therefore, the reasons assigned by the learned trial Court regarding factors that the prima facie case as well as balance of convenience, irreparable loss are found just and proper and no illegality or impropriety is committed by the learned trial Court while reaching to the findings for granting injunction in the facts of the present case.
15. There cannot be any dispute with regard to the ratio laid down in the judgments cited by learned senior advocate Mr.Thakore and learned senior advocate Mr.Patel for Page 33 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined the defendants, however, these judgments are not squarely applicable to the facts of the present case except the fact that the relinquishment deed is a registered document and also regarding fraudulent transaction alleged by the parties. However, when the said registration itself is challenged, the suit has to be tried fully to decide the rights of the parties.
16. At this stage, it is relevant to refer to the judgment relied on by learned senior advocate Mr.Shah in the case of Venigalla Koteswaramma (supra), more particularly, paragraph 40, which reads as under:
"40. Apart from the above, it is also fundamental, as per Section 54 of the Transfer of Property Act, 1882, that an agreement for sale of immovable property does not, of itself, create any interest in or charge on such property. [ Vide Bank of India v. Abhay D. Narottam, (2005) 11 SCC 520] A person having an agreement for sale in his favour does not get any right in the property, except the right of obtaining sale deed on that basis [ Interestingly, in the present case, the vendee or his legal representatives, claiming under the agreement for sale dated 5-11-1976 (Ext. B-10), did not seek specific performance of the alleged agreement.] . For ready reference, we may reproduce Section 54 of the Transfer of Property Act that reads as under:Page 34 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024
NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined "54."Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-
promised.
Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
It goes without saying that the alleged agreement for sale did not invest the vendee with title to, or any interest in, the property in question; and the alleged agreement for sale did not invest the vendee with any such right that the plaintiff could not have maintained her claim for partition in respect of the properties left by Annapurnamma without seeking declaration against the agreement. Therefore, this plea about non-maintainability of suit for want for relief of Page 35 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined declaration against the said agreement for sale remains totally baseless and could only be rejected."
17. The judgment in the case of Wander Ltd. (supra), it is held in paragraph 14 as under:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. In Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) Page 36 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate judgment does not seem to defer to this principle." It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Suraj Land and Industries Pvt.Ltd. V/s State of Haryana reported in 2012(1) SCC 656, paragraphs 16, 18 and 19 as under:
"Scope of an agreement of sale
16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed: (SCC pp. 254-55, paras 32-33 & 37) "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract Page 37 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. ... The word 'conveys' in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
***
37. ... that only on execution of conveyance, ownership passes from one party to another...."
18.It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19.Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter."
18. There cannot be any dispute with regard to the Page 38 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined ratio laid down in any of the judgments relied on by either of the parties. However, the judgments are required to be considered in the facts of each case.
19. This Court has taken appropriate note about the conduct of the defendants, particularly, defendant no.5. The defendants, knowing fully well that the suit proceedings are pending for the subject matter, still they are trying to go on with the construction. Not only that, when this Court, at the time of issuance of notice has granted extension of stay order granted by the learned trial Court against impugned order, under the guise of the same, the construction is going on, which fact is confirmed by the learned advocates for all the parties during the course of arguments and photographs of relevant development on the suit land are also produced for perusal of this Court. In this background, though prima facie it transpires that huge investment is made by the defendant no.5-appellant of Appeal No.13 of 2023 without any valid document of creation of conclusive title except the agreement to sale in favour of the appellant and in absence of execution of any sale deed or valid title over the property even then, proceeding further to construct huge structure on the disputed land and thereafter claiming equity in their favour is required to be viewed strictly.
20. In view of the above, considering the judgments Page 39 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined and considering the material available on the record, it transpires that everything is done in highhanded manner by the appellants as the agreement to sale did not invest the vendee with the valid title or any absolute interest in the property in question and the alleged agreement for sale which is without possession, did not invest vendee with any right against which the plaintiffs could not have maintained their claim for partition in respect of the property, the person having any agreement to sale in his favour does not get any right in the property except right of obtaining sale deed on that basis. Therefore, considering the undisputed fact that the plaintiffs are co-owners of the property, that nowhere in the pleadings of the parties, more particularly, in the written statement or anywhere the defendants have averred that any amount of sale consideration or share of the plaintiffs were paid to the plaintiffs, neither any documentary evidence is produced to indicate that such payment is made. It clearly transpires that now the appellant of appeal no.13 of 2023 has constructed huge portion and appellants of appeal no.12 of 2023 have no right to execute such agreement to sell and also regarding the document like MOU, release deed etc., and all these aspects require a full fledged trial and if the status-quo is not maintained during the pendency of the suit, rights and nature of suit property will change and it may lead to multiple proceedings and the Page 40 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined interest of the plaintiffs may be lost in toto.
21. In view of the above, these appeals are found meritless and required to be dismissed as no perversity or illegality is found in the findings of the learned trial Court and the learned trial Court is just and proper in granting interim injunction in the facts and circumstances of the present case, within the four corners of Order 39 Rule 1 and 2 read with Section 151 of the CPC, more particularly, by considering prima facie and balance of convenience which goes in favour of the plaintiffs and such development pursuant to the alleged transaction is required to be deprecated.
22. Accordingly, these appeals are dismissed, by confirming the findings given in the impugned order passed by the learned trial court below Exh.5. The stay of the impugned order granted by the learned trial Court and extended by this Court is vacated forthwith.
23. The appellants have shown utter disregard to the process of the court by proceeding further with the construction on the disputed property though the substantial proceedings are pending before the learned trial Court as well as before this Court. It is needless to say that such action of development which is carried out till date by the Page 41 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024 NEUTRAL CITATION C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024 undefined appellant-defendant no.5 is at his own risk and cost and therefore no equity can be claimed by the appellant on that count, looking to his conduct and accordingly the order passed by the learned trial Court is required to be complied with in its true letter and spirit.
24. As the appeals from order are dismissed, civil applications are also dismissed.
(SANDEEP N. BHATT,J)
25. After pronouncement of the judgment, learned senior advocates Mr.B.S. Patel and Ms.Trusha Patel for the respective appellants pray for extension of the interim relief, which is granted by this Court while issuing notice. The Court has observed in the judgment that the construction has been carrying out during pendency of the suit as well as even these proceedings and any further construction will certainly jeopardise the rights of either party. Therefore, the request made by learned senior advocates Mr. B.S.Patel and Ms. Trusha Patel are refused.
(SANDEEP N. BHATT,J) SRILATHA Page 42 of 42 Downloaded on : Wed Mar 20 20:50:52 IST 2024