Gujarat High Court
Jagdishbhai Thakorbai Desai & 7 vs Dipak Shobhagmal Mehta & 18 on 1 May, 2014
Author: S.G.Shah
Bench: S.G.Shah
C/AO/312/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 312 of 2008
With
CIVIL APPLICATION NO. 12886 of 2008
In APPEAL FROM ORDER NO. 312 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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JAGDISHBHAI THAKORBAI DESAI & 7....Appellant(s)
Versus
DIPAK SHOBHAGMAL MEHTA & 18....Respondent(s)
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Appearance:
MR MIHIR THAKORE, SR.ADVOCATE WITH MS ARCHANA R ACHARYA,
ADVOCATE for the Appellant(s) No. 1 - 8
MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 18
MR RS SANJANWALA, SR.ADVOCATE WITH MR DILIP L KANOJIYA,
ADVOCATE for the Respondent(s) No. 1
MR SHALIN MEHTA, SR.ADVOCATE WITH MR DIPEN DESAI, ADVOCATE
for the Respondent(s) No. 4 - 8
MR SN SOPARKAR, SR.ADVOCATE WITH MR PARTHIV B SHAH,
ADVOCATE for the Respondent(s) No. 11 - 15
MR RN SHAH, ADVOCATE for the Respondent(s) No. 2 - 3 , 9 - 10 , 16 - 17
Page 1 of 36
C/AO/312/2008 CAV JUDGMENT
NIKITA S BAROT, ADVOCATE for the Respondent(s) No. 3.2 , 12.1 - 12.3
RULE SERVED for the Respondent(s) No. 19
RULE SERVED BY DS for the Respondent(s) No. 3.1 , 9.1 - 9.4
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 01/05/2014
CAV JUDGMENT
1. Appellants are original defendant Nos.19 to 26, whereas respondent No.1 is original plaintiff and respondents No.2 to 19 are original defendants No.1 to18. They are referred to in the same capacity in this appeal also.
2. Appellants are last purchaser of the suit properties, whereas respondents No.2 to 19 being defendants No.1 to 18 are registered owners of the suit property and respondent No.1 is claiming his right over the suit property pursuant to one agreement sell in his favour.
3. By impugned judgment and order dated 6.9.2008, interim application by the plaintiff to restrain the defendants from further alienating the suit property was allowed.
4. Suit property is well described in the pleading before the trial Court, in the impugned judgment as well as in the pleadings before this Court and when there is no dispute regarding nature and details of the suit property, its details are avoided to be reproduced herein and it is being referred as suit property only.
5. It is not disputed fact that defendants No.1 to 18 are coparceners of the suit property since they have inherited it from their ancestors. It is also not disputed that there are several survey numbers, which defendants No.1 to 18 have inherited. It is also not disputed that amongst them, atleast one coparcener is widow and some of them were minor at relevant time.
Page 2 of 36 C/AO/312/2008 CAV JUDGMENT6. The plaintiff has filed the suit being Special Civil Suit No.110 of 2006 before the Court of Civil Judge (S.D.), Surat contending that defendants No.1 to 16 in the suit being original land owners have executed a agreement to sell dated 17.10.1991 jointly in favour of him as well as in favour of defendants No.17 and 18. Defendant No.17 is none other but the real brother of the plaintiff. It is further contended that the suit land was agreed to be sold by the defendants for Rs.12,51,000/- and plaintiff has paid Rs.7,95,000/- towards part-payment of sale consideration and that defendants have to execute the sale-deed in favour of them after accepting remaining amount of the sale consideration. It is further contended that when plaintiff has offered the part-payment, defendants have refused to execute the sale-deed. Meanwhile, the land in question was forfeited by the Government under the Urban Land Ceiling Act ('ULC Act', for short) and, therefore, plaintiff has not filed the suit at an early date. However, it is further contended that when suit land has been released from the restrictions under the ULC Act, defendants have refused to execute the sale-deed and sold the suit land in favour of defendants No.19 to 26 - present appellants. Therefore, plaintiff has filed a suit for cancellation of sale-deed and for specific performance of the agreement dated 17.10.1991 with ancillary relief of restraining the defendants from alienating the suit property in any manner. Plaintiff has also prayed for compensation of Rs.25 Lacs as an alternative relief.
7. The suit and application for interim injunction has been resisted by the defendants by filing their reply and relevant documents. However, considering the bulky record and pleadings, instead of reproducing the defence version, since factual details are not only disturbing, but disclosing certain facts very clearly, it would be appropriate to directly discuss the relevant documents, which would not only make the picture clear, but result into specific conclusion and determination about the dispute between the parties.
Page 3 of 36 C/AO/312/2008 CAV JUDGMENT8. Surprisingly, though in the plaint and in application for interim relief, it is stated by the plaintiff that the suit is filed for specific performance of agreement to sell dated 17.10.1991, the copy of agreement to sell is produced/filed on the record with the plaint is seems to be forged or concocted or atleast false document, inasmuch as the document shows that one stamp paper of Rs.10/- has been purchased on 15.10.1991, but when i.e. date of execution of such agreement to sell is not disclosed at all in such document. On page 1, after the heading "Satakhat" in vernacular language, there is blank space for the day, date, month both in English and Gujarati calender and only year is mentioned as Samvat 2047 and the year 1991. Therefore, it is not certain that this is the agreement to sell dated 17.10.1991, specific performance of which is prayed for. This is not the only lacuna in such document, but it continues when we peruse the entire document, since on pages 2 and 3 of such document, when it is stated that the present plaintiff with defendants No.17 and 18 are purchaser and first party to the document, as second party and seller of the document, a list of 9 persons is disclosed, amongst which at Sr.No.1, it is stated that one Mangalbhai Makanbhai has agreed to sell the suit property and signed this document for himself and as Karta of his HUF. We will come to other descriptions hereinafter, but one discrepancy is common inasmuch as age of none of the seller amongst the 9 persons is disclosed in such document. However, the most surprising and unbelievable disclosure in such agreement to sell is to the effect that it is executed by Mangalbhai Makanbhai in the year 1991, whereas said Mangalbhai Makanbhai has in fact, expired in the year 1973 i.e. almost before two decades. Such fact can be confirmed from revenue entry No.313/17/10/90 wherein because of death of said Mangalbhai Makanbhai, name of as many as 7 legal heirs are endorsed in revenue record as owners of the suit property. Therefore, in any case, when Mangalbhai Makanbhai was not alive in 1991, and when his date of death Page 4 of 36 C/AO/312/2008 CAV JUDGMENT is disclosed in such entry No.313 as 5.6.1973, then, prima facie irrespective of any other evidence, this document i.e. agreement to sell in question is nothing but a false and concocted document and, therefore, there cannot be any interim relief in favour of the plaintiff based upon such document, when plaintiff says that agreement to sell was executed by Maganbhai Makanbhai in 1991, i.e. 18 years after his death in the year 1973.
9. Unfortunately, the above factual position is not the only difficulty for the plaintiff. It goes without saying that when Mangalbhai Makanbhai was not alive, certainly his signature cannot be there, and it is not there in such agreement of sale, but surprisingly, out of list of 9 sellers, even such document does not bear signatures of four more sellers whose names are disclosed in such agreement, they are at Sr.No.2 - Nemabhai Ukabhai, Sr.No.3 - Bai Mani widow of Ukabhai Makanbhai, Sr.No.5 - Chikabhai Ramubhai as well at Sr.No.9 - Nainaben Ramubhai. Therefore, out of so- called nine executors, the document does not bear signatures of five persons. Out of remaining four persons, atleast Bhikhabhai Ramubhai, Kalidas Ramubhai and Babliben Ramubhai whose names are shown at Sr.Nos.6,7 and 8 have denied on affidavit before the trial Court that though there are signatures in their name, they have never signed such document. Moreover, it is admitted fact that in fact, there are in all 16 owners of the suit property, who are joined as defendants by the plaintiffs, whereas in agreement to sell, the sellers are only 9 and signatures as well as thumb impression are only six below the document, out of which most of them have refused to have signed such document. Such refusal is not reflected in pleadings and by affidavit alone, but defendants have also produce a report of handwriting expert confirming that signature on such agreement to sell is not made by them.
10. The most disturbing issue with the same agreement to sell is to the effect that, practically, defendant No.17 herein, who is proposed Page 5 of 36 C/AO/312/2008 CAV JUDGMENT purchaser and real brother of the present plaintiff has filed similar suit being Special Civil Suit No.49 of 2005 on 3.3.2005 before the same Court wherein same agreement to sell is produced at Mark 3/1 to that suit. Certified copy of all such documents are produced on record. Perusing same agreement to sell, which is produced in previous suit No.49 of 2005, it becomes clear that though all the facts are common with the documents produced in the present suit, which is discussed herein above, there is one glaring difference inasmuch as the date on page 1 of such document is disclosed is 2.1.1991 as if agreement to sell was executed on 2.1.1991 though stamp was procured on 15.10.1991. Therefore, the question is that how an agreement to sell has been executed on 2.1.1991 on a stamp paper, which was purchased 10 months thereafter i.e.15.10.1991. Rest of the discrepancies, which are described herein above are same. In other words, it is the same document, which is produced in the present suit also.
11. Unfortunately, the mischief does not stop as such. On further perusal of both documents, one with blank date and another with the date 2.1.1991 it becomes clear that even on page 4 of the document, there is a blank space, so far as area of property is concerned and even rate per bigha is also kept blank on last but one line on page 4. On perusal of both the documents, one more thing is clear that though number of sellers are 9 as second party in such document, alleged signatures are only of persons named at Sr.Nos.3, 6, 7 and 8 and thereby atleast two signatures in the name of Budhiabhai Mangalbhai Patel and Jamnaben Mangalbhai Patel are either unwarranted or taken with an intention to simply count the number of signatories so as to make it nine. Out of six signatures, there are four thumb impressions and unfortunately, none of the thumb impression is endorsed by any third person as identified by him. Whereas, out of four thumb impressions, atleast in three thumb impressions, even full name of the person whose thumb impression is there, is not disclosed Page 6 of 36 C/AO/312/2008 CAV JUDGMENT at all.
12. One another glaring fact is to the effect that the person who has signed such so-called agreement to sell as a witness, namely, Gosaibhai N.Patel has in fact executed an admission deed i.e. declaration that he has never entered into any such transactions with anybody and that he has never signed any such agreement to sell or he has never acted as a middleman in any such sale transactions.
13. Therefore, prima facie the agreement to sell is certainly a concocted and unreliable document. However, contrary to such affidavit, said` Gosaibhai N.Patel have during investigation of criminal offences pursuant to complaint filed by the land owners disclosed altogether different new stories in their statement dated 18.5.2005 and 13.1.2007 (page Nos.470 and 499 of the paper-book). In his first statement on 18.5.2005, said Gosaibhai N.Patel have disclosed that he was cultivating the said land till 1993 since 1970 when he has acquired it from Budhiabhai Mangalbhai i.e. present respondent No.3 and that land was forfeited by the Government in the year 1994 and till then it was not cultivated by anyone and, therefore, he has received amount of Rs.5,50,000/- from present plaintiff for development of such land, since, because of non-cultivation for couple of years it requires filling of mud etc. However, he further stated that such amount of Rs.5,50,000/- has been returned back by him to Dipakbhai being present plaintiff and confirms that the agreement to sell in question and subject matter of the present suit bears his signature, which he has put only because plaintiff Dipakbhai has brought it before him. It is also disclosed that in addition to such signature, he has also signed several receipts, but he reconfirmed that he has never sold the land to anybody. Whereas, in his statement dated 13.1.2007, he confirms that original land owner had never assigned him permission by executing power of attorney in his favour so as to sell the suit property and thereby he has never sold the suit property in favour Page 7 of 36 C/AO/312/2008 CAV JUDGMENT of the plaintiff - Dipakbhai and now instead of Rs.5,50,000/- stated in the year 2005, he referred an amount of Rs.3,50,000/- as if it is borrowed from Dipakbhai, the plaintiff and contended that Dipakbhai wants to take away the property at such price of Rs.3,50,000/-, whereas he has sold it at Rs.20 Lacs to someone and paid Rs.3,50,000/- to Dipakbhai. So far as all such transactions are concerned, it is disclosed by said Gosaibhai N. Patel that since all the lands are adjoining to each other, there is mistake in mentioning the correct survey number for which such transactions had taken place. As against all such stories in two statements before the police, Gosaibhai N.Patel has in his declaration dated 15.3.2003 signed in presence of four other persons, confirmed that suit properties are owned by their original owners and he has never entered into any writing for such suit properties and he has not paid any amount to the original owners and he executed such declaration to avoid any confusion within the village. Therefore, when such declaration is voluntary and well before the investigation, wherein there is no disclosure about his action and transaction with the plaintiff either for Rs.3,50,000/- or Rs.5,50,000/- as discussed above, all such stories cannot be relied upon at such stage. However, all these three documents categorically confirms that original land owner has never executed any agreement to sell and power of attorney in favour of Gosaibhai N.Patel and in turn he has never sold the property to anyone.
14. It cannot be ignored that though agreement to sell in question is without date and though in previous suit, the same agreement to sell is produced with date as 2.1.1991 i.e. prior to the date of purchase of stamp being 15.10.1991, the plaintiff has disclosed on oath on the record of the suit that agreement to sell was executed on 17.10.1991. Therefore, there is no prima facie evidence in favour of the plaintiff when the document, performance of which is sought for by the plaintiff is seems to be not a genuine document at all. Surprisingly, the trial Court has allowed the Page 8 of 36 C/AO/312/2008 CAV JUDGMENT application for injunction, though such document seems to be forged and when matter is argued before this Court again, surprisingly, the plaintiff has submitted that there is nothing wrong even if wrong date is shown in the agreement to sell or even if it is without any date and once they have produced an agreement to sell, then, they should be allowed to prove its contents in the suit by confirming the interim relief granted by the trial Court. It cannot be ignored that the date is not the only issue, but such agreement to sell discloses the name of executor, who is not alive for last more than one decade and though property was held by more than six persons, the document shows signature of only six persons and most of them have denied to have signed such document and there is an opinion of handwriting expert to confirm that the persons whose signatures are endorsed on such agreement as executors of such document have not signed such document. Moreover, the witness Gosaibhai N.Patel have also categorically disclosed on three different occasions i.e. once by declaration in the year 2003 and thereafter before police during the investigation in the year 2005 and 2007 that he has never sold the suit property to the plaintiff. Therefore, on such ground itself, application for interim injunction by the plaintiff was deserved to be dismissed, however, surprisingly, the trial Court has even after such evidence on record, dared to confirm the injunction application and, hence, present appeal.
15. Considering the above position, even this appeal is also required to be allowed on such ground alone, but when there are more than one ground, atleast its reference would be necessary before putting the final blow on the impugned order to quash and set-aside the same.
16. Unfortunately, even proof of payment of certain amount towards sale consideration by the plaintiff also does not bear the signature of any land owner, but it is also signed by Gosaibhai N.Patel only. Though in all such receipts, it is stated that it is on behalf of the land owners, when Gosaibhai N.Patel have admitted that such amount was taken by him for Page 9 of 36 C/AO/312/2008 CAV JUDGMENT development of the property and when none of the receipt discloses even in a single word that it is towards sale consideration, such receipts cannot be treated as a proof of payment for sale consideration. It is also admitted position that in some of such receipts, it is categorically stated that amount is paid by the plaintiff and accepted by Gosaibhai N.Patel towards some accounts, thereby, only reference of suit land in such receipt does not confirm that it is towards sale consideration. It is also to be noted that all such receipts are towards payment in cash whereas when it is contended by the plaintiff that they have paid Rs.5000/- by cheque to Bhikhabhai Ramubhai Patel and Kalidas Ramubhai Patel, some of the original land owners, surprisingly, plaintiff does not want to confirm by bank statement that whether amount of such cheque has ever been credited in their account and what is produced on record is a chit on paper disclosing name, cheque number, date and amount only and neither photocopy of the cheque nor the statement of the bank so as to confirm any such transaction. Therefore, such receipts are also forged and bogus.
17. Even power of attorney deed produced by the plaintiff on record seems to be forged inasmuch as a simple scrutiny of the document makes it clear that in a blank format of power of attorney, some details are over- typed, since such typing has gone out of the margin and not properly set in the text of the pre-typed document. In any case, even if such power of attorney deed is to be considered, it is certain that at the beginning it is stated in such document that the same has been endorsed by two persons, namely (1) Jamnaben Mangalbhai and (2) Budhiabhai Mangalbhai as an executor of power, whereas, suprisingly, at the end of such document, there is no signature of either Jamnaben or Budhiabhai, whereas, there are in all four signatures, that is of (1) Bhikhabhai, (2) Kalidasbhai and thumb impression of (3) Paliben and (4) Babliben. Moreover, such document was not endorsed to be executed in favour of any public authority or even a notary and it does not have even signature of advocate Page 10 of 36 C/AO/312/2008 CAV JUDGMENT whose name is disclosed at the bottom as T.C. Bhajiwala, so as to identify the parties before the public authority or notary for execution of such document. It is also to be recollected here that name with thumb impression are not in full in this document as well as in the so called agreement to sell and it was not identified by any person with his signature. Whereas stamp paper for such power of attorney is seems to be purchased on 6.9.1989 and if it is so, then, there was no reason to over- type certain information on any pre-typed document when date of execution is also the same. The details endorsed in the so-called power of attorney deed are also in different fonts then the regular fonts used in the document.
18. While filing the reply before the trial Court, the defendants have categorically disclosed that plaintiff has intentionally not produce the original agreement to sell on record since it is a forged document and, therefore, when there is such specific contention in the reply, it is necessary for the concerned party to produce original document on record. However, it is not a disputed fact that plaintiff has not produced original agreement to sale-deed on record and ultimately it was seized by the police pursuant to the complaint filed by the defendants. It is also not disputed that whatever is disclosed herein above with reference to such so-called agreement to sell, has been pleaded by the defendants in their reply before the trial Court also. However, unfortunately, the learned trial Judge has failed to scrutinize and appreciate such basic lacuna and nature of the document which certainly makes it inadmissible in evidence and when prima facie it seems to be a forged document.
19. It is also required to be noted here that the issue regarding forgery in so-called agreement to sell was practically disclosed in Special Civil Suit No.49 of 2005 preferred by the defendant No.17 herein, who is brother of the present plaintiff wherein the document discloses the date as 2.1.1991 on a stamp paper purchased on 15.10.1991. In addition to such Page 11 of 36 C/AO/312/2008 CAV JUDGMENT factual position, there are several other issues which leads to prima facie conclusion regarding forgery by the plaintiff and his brother and,therefore, defendant No.17 herein being plaintiff in such previous suit has withdrawn that suit from trial Court and such withdrawal with a permission to file fresh suit was challenged before this High Court in Special Civil Application No.5051 of 2006, wherein also all such facts have been disclosed and discussed. The previous suit was also bad inasmuch as it was filed against dead person and there were several irregularities including non-joinder of necessary parties. Therefore, though Court has granted permission to file fresh suit, knowing fully well that all such irregularities will come in their way, now second brother has come forward by filing present suit based upon the same forged agreement to sell.
20. Appellants have also pointed out the mischief committed by both the brothers by referring prayer in Special Civil Suit No.49 of 2005 wherein defendant No.17 herein has prayed for interim relief disclosing that he is in possession of such property and thereby to restrain the land owner from disturbing his possession, though no possession was ever handed over to him pursuant to agreement to sell in question, which is otherwise also forged document. It is not disputed that even for the sake of argument atleast for a second, if we refer the so-called agreement to sell, it is clear that possession of the land has never been handed over to the plaintiff or his brother, which fact is disclosed in condition No.7 of such document, whereas in the suit it is claimed that possession has been handed over to the plaintiff. It is admitted position at present that possession of the suit properties is with appellant. This clearly shows that plaintiffs are taking disadvantage of judicial process.
21. It cannot be ignored that when defendants - original land owners have produced all such record of previous suit, in the present suit also and when it has been clear that both brothers are filing two different Page 12 of 36 C/AO/312/2008 CAV JUDGMENT agreements to sell, one without date and one with date prior to the purchase of stamp itself (same was purchased on 15.10.1991 whereas document is alleged to be executed on 2.1.1991 i.e. prior to purchase of stamp paper), the trial Court has without considering all such factual details against the plaintiff, confirmed the interim relief in favour of the plaintiff. The defendant has also produced on record relevant entries from revenue record. Entry No.313 dated 17.10.1990 confirms that Mangalbhai Makanbhai had expired on 5.6.1973 and, therefore, suit property was mutated in the name of his heirs in their personal individual capacity and not only in the name of eldest male member and family as Karta of the family. Even though such entry was there in the revenue record, surprisingly plaintiff has narrated the name of certain persons in so-called agreement to sell as Karta of their HUF though no HUF was in existence or atleast suit land was not in the name of HUF, but in the name of all heirs in their individual capacity. Whereas so far as Mangalbhai Makanbhai is reported dead on 5.6.1973, there is no reason to disclose him as executor of so-called agreement to sell in his capacity as Karta of his HUF after his death. Before such entry, by entry No.272 on 15.1.1988 also, there was entry regarding mutation in the name of legal heirs of deceased Mangalbhai Makanbhai. Whereas, it is not disputed that suit land was mutated in the name of Mangalbhai, Ramubhai and Ukabhai being legal heirs of original land owner, namely, Makanbhai Devabhai, who expired on 15.1.1954. Therefore, suit properties are ancestral properties and all legal heirs of Makanbhai Devabhai are co-owners and coparceners of the suit property and, therefore, entire suit property cannot be disposed of by some of them only and that too without proper execution and without proper signatures.
22. It seems that by so-called agreement to sell, wherein thought there are above referred irregularities, when plaintiff submits that instead of listing of legal heirs, they have listed the name of Karta of HUF of three Page 13 of 36 C/AO/312/2008 CAV JUDGMENT legal heirs of deceased Makanbhai Devabhai, plaintiff has failed to realise that atleast for the family of Ramubhai, they have disclosed the name of all heirs of Ramubhai and even thereafter they stated that persons at Sr.Nos.5 to 7 in the document are there in their personal capacity as well as Karta of their HUF, whereas so far as legal heirs of Mangalbhai Makanbhai and Ukabhai is concerned, only name of one person is disclosed as Karta of their family. Though it is repetition, but it needs to be recollected again and again that amongst them, Mangalbhai Makanbhai had expired long back in the year 1973.
23. Probably because of such irregularities when defendants have come to know about the illegal activities by the plaintiff, some defendants being original land owners had issued a public notice on 20.10.1993 disclosing and conveying the public at large that they had never executed any power of attorney in favour of Gosaibhai N.Patel or any agreement to sell in favour of anybody. In view of such disclosure, it would be appropriate for the plaintiff to initiate some proceedings at that time itself if at all plaintiff is sure that he has not committed any mischief or forgery, but the plaintiff has waited till the year 2005-2006, though it is under the pretext that land was forfeited by the Government and, therefore, there was no reason for them to agitate the issue. The fact remains that they haver not challenged the disclosure by the defendants that defendants have never executed any power of attorney or have never agreed to sell any property to anybody.
24. There were some public notice by different litigants and even by plaintiff, but at present the contents of such notices cannot be treated as a proof regarding title of the plaintiff on a suit property. It cannot be ignored that immovable property cannot be transacted without following proper law and rules.
25. The plaintiff has submitted written argument before the trial Court Page 14 of 36 C/AO/312/2008 CAV JUDGMENT signed by advocate for the plaintiff on 24.3.2008 whereas other pleadings are signed by the plaintiff supported by affidavit. Thereby, when any such written argument by the plaintiff discloses and supports the contentions in the pleadings and documents produced by the plaintiff, which are discussed herein above, if scrutinized with reference to each other, then, surprisingly now the plaintiff has come forward with altogether a new story inasmuch as in the plaint and application at Exh.5 for interim relief when it is stated that so-called agreement to sell was executed on 17.10.1991, now in written argument it is stated that original agreement to sell does not disclose any date of its execution and original agreement is in their possession. However, now, it is clear by this documentary evidence in written statement on record that some of the amount was pleaded to be paid in January and March 1991 i.e. well before the execution of agreement to sell and, therefore, it is certain that plaintiff has tried to mix up different facts and concocted facts and documents to grab properties of the defendants by producing forged agreement to sell in his favour. Whereas it is also not disputed by the plaintiff that all such payment was made to the power of attorney holder, namely, Gosaibhai N.Patel and not to the original land owners, but as disclosed herein above, when such power of attorney deed is also forged and when such Gosaibhai N.Patel categorically confirmed that they have never entered into such transaction, the entire story of the plaintiff is seems to be concocted one, only with a view to get some undue advantage.
26. It is not disputed that at the relevant time in absence of any specific restriction to deal with the suit properties, some of the original owners of the suit property have entered into certain sale-deed in favour of defendants No.19 to 26 and atleast those defendants are bonafide purchaser for value since there was no restriction or lis pendens when such documents were executed. It is also not disputed that before executing such sale-deed, property in question was legally mutated in the Page 15 of 36 C/AO/312/2008 CAV JUDGMENT name of defendants being original land owners and they were entitled to deal with such properties. All such relevant facts are disclosed in the sale- deeds executed by them, copies of which are also produced on record and all such sale-deeds are registered documents. Therefore, it is certain and clear that learned trial Judge has failed to appreciate the document on record before passing the impugned order.
27. It seems that plaintiff has tried to take disadvantage of the internal differences between the land owners who are 16 in numbers, inasmuch as now atleast one of the defendant i.e. Manaben, daughter of Mangalbhai Makanbhai being defendant No.3 in the suit and respondent No.4 in appeal has come forward with a case that Satakhat in question was executed by defendants No.1 to 16 on 17.10.1991 and against the sale consideration of Rs.12,51,000/-, amount of Rs.7,95,000/- was paid by the plaintiff and his brother and Suresh Bhimabhai being beneficiary of agreement to sell as consideration to the land owners. However, she also confirms that documents are concocted. Such stand is because of the dispute amongst the original land owners for which separate suits are filed amongst them, being Special Civil Suit No.268 of 2009 by said Manaben, daughter of Mangalbhai Makanbhai against their co- owner/coparcener as well as against all of relevant persons, who are concerned with the suit properties including present litigants. Such suit is mainly for partition of the ancestral properties, declaration of her rights being legal heirs of Mangalbhai Makanbhai and for cancellation of sale- deed in favour of defendants No.19 to 26 and for injunction. Learned senior counsel Mr.Shalin Mehta is appearing for such defendants and he has argued mainly on the issue of rights of women referring the decision of Apex Court in the case of C. Masilamani Mudaliar & Ors. vs.The Idol of Sri Swaminathaswami Swaminathaswami Thirukoil & Ors. reported in (1996)8 SCC 525, submitting that womens have right to equality of status and opportunity which also forms part of the basic Page 16 of 36 C/AO/312/2008 CAV JUDGMENT structure of the Constitution, since there is gender based discrimination particularly in respect of property. However, though we respect such observation by the Apex Court and though such litigant is interested in confirmation of stay, so as to confirm stay in their favour in their suit, such aspect shall be taken care of while final determination, but it is clear and certain that such stand is only because of their inter se dispute regarding their share and when such Manaben Mangalbhai has not executed the so-called agreement to sell, her statement on such document would not be much relevant.
28. The revenue proceeding regarding suit property are not much material at present while deciding the application for interim relief inasmuch as the revenue proceedings are with reference to the rights of the original owners holding the property and purchase of the property by the plaintiff.
29. It is also now not in dispute that pursuant to so-called agreement to sell and other sale transactions, Manaben, daughter of Mangalbhai Makanbhai Patel has filed one complaint regarding forgery of certain documents and pursuant to such complaints, documents in questions were referred to Forensic Science Laboratory at Gandhinagar. The Director of Forensic Science, Gandhinagar has vide its ICR No.91/13 dated 23.9.2013 issued a laboratory examination report regarding opinion and the disputed document and signature and they also opined that the signature on so-called agreement to sell do not tally with the signatures of the persons whose signatures are shown as signatories of such documents i.e. in short it is now evidence on record that documents in question are forged documents.
30. In view of above discussion, it becomes clear that the plaintiff does not have a prima facie case in his favour when he is relying upon a forged document and, therefore, it can never be said that balance of convenience Page 17 of 36 C/AO/312/2008 CAV JUDGMENT is in his favour and thereby irreparable loss would result to him.
31. Learned senior counsel Mr.Shalin Mehta for defendant No.3 has though resisted the submission by the original plaintiff, he also defends his client against the appellant also because defendant No.3 has filed Special Civil Suit No.268 of 2009 and therein also similar reliefs are prayed for, hence, though they are not supporting the plaintiff atleast for interim relief, they are not supporting present appellant also and to that extent supporting the plaintiff. However, such dual stand cannot be looked into at present when we are not dealing with the prayers in Special Civil Suit No.268 of 2009, but it is made clear that the competent Court while deciding any pending application in such Special Civil Suit No.268 of 2009 may decide such application in accordance with law and based upon whatever prima facie material or evidence is produced before it i.e. without being influence by the result of this appeal, because so far as discussion on forged documents are concerned, the same cannot be ignored now even in any other pending litigation unless plaintiff is able to rebut the prima facie evidence regarding falseness and forgery of such documents, based upon which present suit is filed. It cannot be ignored, even at the cost of repetition, that in criminal proceedings, Gosaibhai N.Patel has categorically stated that he had accepted the amount in question from the plaintiff as advanced for development of the suit land and not towards sale consideration to sell out the suit property to the plaintiff as power of attorney holder of original land owner. It is also clear and obvious that there is neither proper agreement to sell nor the power of attorney in favour of anybody that may be properly executed by the original land owners. Therefore, no-one will get a better title by the sale-deed, if any executed by Gosaibhai N.Patel as power of attorney holder does not give any better title to third party.
32. However, pursuant to sale-deed based upon the power of attorney issued by the original land owner in favour of one of them, namely, Page 18 of 36 C/AO/312/2008 CAV JUDGMENT Kalidas Ramubhai Patel, though prima facie defendants No.19 to 26 are seems to be bonafide purchaser for value, considering the pendency of Special Civil Suit No.268 of 2009, it would be appropriate not to discuss and thereby determine and conclude about the inter se rights between the original landlords being defendants No.1 to 16 as against defendants No.19 to 26, thereby at present, all discussions and determination in this appeal is restricted for the dispute between the plaintiff and defendants No.1 to 16 only. It is clear that defendants No.19 to 26 are claiming their right only through defendants No.1 to 16 and it is, therefore, inter se dispute, which may be decided by competent Court in Special Civil Suit No.268 of 2009, but for that plaintiff and defendants No.17 and 18 could not get any benefit based upon false and forged documents.
33. However, when trial Court has allowed the application at Exhs.5 and 6 for interim reilef in favour of the plaintiff, it would be necessary to properly scrutinize the impugned judgment. On perusal of the judgment, it becomes clear that trial Court has without examining and scrutinizing the original documents though least of such documents are reproduced in the impugned judgment, relied upon the pleadings by the plaintiff and considered that there is a valid agreement to sell executed by the defendants No.1 to 16 on 17.10.1991. Unfortunately, in paragraph 4 of impugned judgment, the trial Court has recorded the pleadings of defendants also wherein it is categorically recorded that defendants have contended that they have not executed any Satakhat, there is no date in the Satakhat, the name of all the sellers are not there, Maganbhai Makanbhai whose name was shown as seller had already expired in 1973 and that they have not received any amount by cash or by cheque. It is also recorded by the learned trial Judge that there are so many places in Satakhat which are blank and age, measurement of land are not disclosed, and that thumb impressions were not identified. However, surprisingly even after such discussion of documents in the impugned judgment, the Page 19 of 36 C/AO/312/2008 CAV JUDGMENT trial Judge has relied upon such documents for confirming the interim relief in favour of the plaintiff. The trial Court has also recorded the fact that the documents do not bear the signature of the persons whose names are disclosed as signatories in such agreement to sell as well as the fact that previous suit No.49 of 2005 was withdrawn. Unfortunately again after framing the issues, the trial Court has discussed the averments of both the sides wherein also in paragraphs 9 to 11 all lacunas and misdeeds with the agreement to sell are recorded by the trial Court.
34. However, even after recording all lacunas in the documents and pleadings, trial Court has confirmed interim relief observing that when there is a dispute in respect of title of the suit properties between the parties, normal practice is to restrain the party from alteration of the disputed property. By such observation it has been held that defendants No.19 to 26 are not bonafide purchasers and believed the payment of consideration by the plaintiff, though the person, who is said to have issued receipt, namely, Gosaibhai N.Patel have categorically confirmed that such amount was accepted for development of the suit property and not towards price of the suit property. However, the trial Court has confirmed interim relief.
35. Moreover, for confirming the order of status-quo, the trial Court has relied upon the contempt proceedings initiated by the defendants pursuant to Special Civil Application No.5051 of 2006 and observed that when defendants have not obeyed the order of the High Court in maintaining status-quo of the suit property, it will be appropriate to direct them to maintain status-quo. However, the trial Court has failed to understand that the contempt proceedings initiated by the plaintiff's brother pursuant to some order in Special Civil Application No.5051 of 2006 has already been dismissed by the Division Bench of the High Court considering the fact that sale transaction by the defendants No.1 to 16 in favour of defendants No.19 to 26 were during the period when no Page 20 of 36 C/AO/312/2008 CAV JUDGMENT litigation was pending before any Court. Such observations and findings are there in judgment and order dated 30.6.2008 in Misc.Civil Application No.2038 of 2007 for contempt in Special Civil Application No.5051 of 2006. Therefore, when Division Bench of High Court taking care of contempt matter has decided in favour of defendants No.1 to 6, that there is no contempt since there was no prohibitory order against defendants No.1 to 6, then trial Court has no reason to again rely upon the allegations regarding contempt and to direct the defendants to maintain status-quo. The record shows that order of the High Court to maintain status-quo in Special Civil Application No.5051 of 2006 is dated 4.5.2006, whereas defendants No.1 to 16 have sold the properties to defendants No.19 to 26 on 25.5.2005 i.e. almost one year prior to the order of maintaining status-quo and, therefore, it cannot be termed as breach of Court's order or contempt of Court in any manner. Therefore, only because defendants No.1 to 16 have sold the suit property to defendants No.19 to 26 well before filing of the suit, it cannot be said that plaintiff has got a prima facie case in his favour when previous suit was withdrawn because of the clarity that document in question i.e. agreement to sell is apparently forged document.
36. The trial Court has also observed that at the stage of inter-locutary application, Court cannot go on to the merits of the case and can see only broad probabilities of all such circumstances and though held that looking to the arguments of both the sides, Court has not come to the conclusion that plaintiff has already paid part consideration to the defendants and that defendants have executed Satakhat in favour of the plaintiffs (paragraph 55 of the impugned judgment) and though it is further held that the plaintiff has not proved the Satakhat prima facie and without recording evidence Satakhat cannot be taken a proof of evidence, but only because there was order of status-quo in the proceeding before the High Court with reference to Special Civil Suit No.45 of 2009, trial Court has Page 21 of 36 C/AO/312/2008 CAV JUDGMENT partly allowed the application by an order dated 6.9.2008; whereas Division Bench of the High Court has already confirmed by judgment dated 30.6.2008 that there is nothing wrong as there is no contempt because there was no interim relief in favour of the brother of the plaintiff pursuant to proceedings of Special Civil Suit No.49 of 2005, which was practically withdrawn.
37. Unfortunately, after all above discussions ultimately in paragraph 36 while concluding the application, the trial Court has observed that plaintiff has a case in which he is likely to succeed without realising that since documents seem to be forged and now in the form of report by Forensic Science Laboratory when there is prima facie evidence to the fact that documents are forged, there is no reason to confirm such impugned order. Unfortunately, the trial Court has observed that "all that the Court has to see is that on the face of it, the present application for injunction has a case, which needs consideration and which is not bound to fail by virtue of some apparent defects" and that "the plaintiff did not establish his title, but he can show that fair question is in existence". With due respect, overall reading of the impugned order makes it clear that it is not only arbitrary, but against the settled principles of law and perverse, since trial Court has failed to appreciate the pleadings and documents on record in proper perspective and though trial Court has observed that some of the documents are not genuine, when trial Court has granted injunction on surmises only that plaintiff would be given a fair chance to prove his case, there is no option to interfere in such judgment.
38. Both the sides have argued their case at length and referred several documents, which are taken into consideration.
39. As against above-referred clear factual position, surprisingly what is argued by the other side is to the effect that when interim relief is Page 22 of 36 C/AO/312/2008 CAV JUDGMENT continued since 2008 till 2014 and when suit is ripe for hearing, they agree to dispose of the suit at an earlier date if order of status-quo is continued by dismissing the appeal and that therefore it is submitted that this is a fit case to direct the trial Court for completing the trial at the earliest, continuing the interim relief in their favour on the ground that otherwise third party right may be created against plaintiff's right. It is also submitted that issues involved in the litigation may be decided only after the evidence of the parties and that unless they are given chance to prove the documents, which are otherwise alleged to be forged, interim relief cannot be vacated. It is further submitted that defendants - appellants have not come with clean hands and looking to their conduct, they are not entitled to any relief in the present appeal. Though there was no breach of order of status-quo as discussed herein above, plaintiff is again relying upon the same set of factual details, which is considered by the trial Court in the impugned judgment. However, it is clear that this is nothing but an attempt to complicate the matter by arguing something against the record and with an intention to prejudice the Court against the defendants in the name of contempt of Court. But as aforesaid, when Division Bench has vide its order dated 30.6.2008 confirmed that there is no contempt, and when such order was never challenged by the plaintiff, now, plaintiff are precluded and estopped from taking such ground again and again.
40. So far as submissions and allegations regarding forgery are concerned, it is contended that forged documents are not part of the record before the trial Court and, therefore, forgery cannot be decided by the trial Court and that opinion of the handwriting expert are not conclusive. Thereby, veracity of the documents can be checked only at the time of trial and not otherwise. Thus, it is submitted that once plaintiff has produced one document irrespective of its genuineness, it is to be believed as a gospel truth and shall be binding to all including the Court Page 23 of 36 C/AO/312/2008 CAV JUDGMENT to decide the matter in favour of the plaintiff alone irrespective of evidence in rebuttal to prove that the documents are forged and cannot be relief upon. Surprisingly, what is submitted is to the effect that even if a document shows the name of dead person as its executor and though total number of executors disclosed are nine and though most of them have not signed document and though document not only lacks in disclosing the date of execution, but in two different suits of two brothers when different dates are disclosed as date of execution of such document and one of such date being 2.1.1991, is atleast 8 months prior to the date of the stamp paper being 15.10.1991, it cannot be said that same document is not genuine and relying upon it, interim relief should be confirmed in favour of the plaintiff.
41. Whereas the learned sr.counsel Mr.D.D.Vyas for defendant No.18 has also supported the case of the plaintiff contending that triable issues are raised and contentions by the defendants are factually incorrect and that title of the defendants are doubtful and in face mischief is played by the defendants.
42. In response to such argument by defendant No.18, it is contended by learned sr.counsel Mr.S.N.Soparkar that respondent No.18 has never filed any suit and that subject matter of the suit is not the sale-deed in question, but it is agreement to sell, which is a forged document. It is contended that plaintiff must prove prima facie case in his favour that balance of convenience and irreparable loss and that delay in Court proceeding if not attributed to the appellant, then, only because of pendency of appeal, it cannot be said that now matter shall be referred to the trial Court for early decision.
43. Whereas learned sr.counsel Mr.S.N.Soparkar for some of the original land owners submits that considering the development, which confirms that there is possibility of forgery by both the sides, and when Page 24 of 36 C/AO/312/2008 CAV JUDGMENT investigation is going on, order of status-quo should be continued.
44. However, I do not find any substance in the arguments of any of the respondents that only because of pendency of appeal, rights of the parties cannot be geoparadised and as observed earlier, only because of separate suit filed by some of the land owners, the order of injunction cannot be confirmed in the present suit relying upon forged documents. The litigants have relied upon by several different citations as under. All the parties have relied upon several different citations and some citations are referred and relied upon more than one litigant. However, considering the factual details herein above, when fact is crystal clear, to prove that there cannot be a conclusion regarding prima facie case in favour of the plaintiff because of the irregularities which can certainly be termed as forgery in the agreement to sell based upon which the entire suit is filed, there is no much scope for discussion on legal issues. When basic and prima facie evidence is not in favour of the plaintiff and when for lack of prima facie evidence in favour of the plaintiff, interim relief cannot be continued in favour of the plaintiff, I do not see any reason to burden this judgment by reproducing details of all such citations/decisions from all cited cases as referred and read-out during argument. However, it would be necessary to refer all of them atleast with minimum discussion about its applicability with reference to the factual details discussed herein above.
45. The appellant has relied upon:-
1. 2012 (2) GLH 61 - Padmavati Paradise, Proprietory concern of Parashar Arvind and Anr. vs. Kirtiben Dhaneshkumar Shah
2. 2007(1) GLR 79 - Jayantibhai Mafatbhai Patel & Ors. vs. Dilipbhai Becharbhai Patel & Ors.
3. AIR 2010 SC 296 - Kashi Math Samsthan vs.Srimad Sudhindra Thirtha Swamy"Page 25 of 36 C/AO/312/2008 CAV JUDGMENT
4. AIR 2001 GUJARAT 90 - Ashwinkumar Manilal Shah vs.Chhotabhai Jethabhai Patel
5. 1996(1) GLH 179 - Veetrag Holdings Pvt. Ltd. vs. Gujarat State Textile Corporation Ltd.
46. In Padmavati's case (supra), it is held that subsequent to grant of injunction if there is change in circumstances, due to subsequent development, if consideration of prima facie, balance of convenience and irreparable loss gets changed, then the Court can exercise the powers under Order 39 Rule 4 to modify the order of injunction.
47. In Kashi Math's case (supra), Hon'ble Supreme Court has reaffirmed that if any party is unable to prove the prima facie case, injunction cannot be granted even if such parties make out case of balance of convenience and irreparable loss. Thereby, if party fails to prove prima facie case, it is not open for the Court to grant injunction in his favour. In the present case, when plaintiff has failed to prove prima facie case, then, certainly he is not entitled to interim relief.
48. In Jayantibhai's case (supra) it was held that the Court cannot ignore material on record and circumstances which are in existence on a ground that plaintiff need not establish his right or title at this stage, but should have a fair question to be tried. It is categorically stated that it is not law that moment the suit is filed, trying to make out some case, by ignoring the material on record injunction must follow even ignoring the material on record. If available material is not to be considered at the time of considering the injunction application, Courts would be flooded with frivolous litigations. Therefore, the Court is required to examine minutely the merits of the case and the circumstances in existence. When it has not been done by the trial Court in the instant case, there is no option but to interfere with the impugned judgment.
Page 26 of 36 C/AO/312/2008 CAV JUDGMENT49. The case of Ashwinkumar M.Shah (supra) has been approved in unreported summary judgment in SLP (Civil) No.17481 of 2000 by Hon'ble Supreme Court and, hence, now what is decided by the Division Bench of this High Court, practically results into verdict by the Apex Court. It is held that when suit property was ancestral one, agreement executed by some of co-sharers and when other co-sharers were not signatories to the agreement, such agreement cannot be enforced, since it does not bind other co-sharers even if there is recital to that effect in the document. It would be inequitable to enforce specific performance of such agreement. It is specifically held that it amounts to practicing fraud on other co-sharers. Therefore, in the present case also, when agreement to sell is not signed by all co-sharers, there cannot be performance of such agreement to sell and in that case, there is no reason to confirm the interim relief as prayed for.
50. In Veetrag Holdings Pvt. Ltd.'s case (supra), it was specifically held that equitable relief of temporary injunction can be refused on the ground of delay and latches. Even if suit for specific performance is within time, since injunction being equitable relief, can be refused when suit was filed late only because of non-availability of land because of some restrictions. The position in the present case is almost similar when plaintiff has filed the suit at belated stage and that too when his brother has to withdraw the suit based upon the same agreement to sell since it is a forged document.
51. Unfortunately, though none of the judgment is in favour of the plaintiff, an attempt was made by the plaintiff to show that there is prima facie case and that since interim relief is continued till date, it can never be set-aside irrespective of forged document and absence of any prima facie evidence. Therefore, none of the following judgments would help plaintiff to confirm the impugned order. All the respondents including Page 27 of 36 C/AO/312/2008 CAV JUDGMENT plaintiff have relied upon following citations:-
1. AIR 2008 SC 2560 - Guruswamy Nadar Vs. P.Lakshmi Ammal
2. AIR 2010 SCW 6555 - Har Narain (Dead) Vs. Mam Chand (Dead)
3. (2000)6 SCC 402 - R.K. Mohammed Ubaidullah & Ors. Vs. Hajee Abdul Wahab & Ors.
4. AIR 1996 SC 2184 - S. Gopal Reddy Vs. State of A.P.
5. (1973)4 SCC 46 - Smt.Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma & Ors.
6. (2009)10 SCC 388 - Zenit Mataplast Private Limited Vs. State of Maharashtra & Ors.
7. AIR 1990 SC 854 - Kartar Singh Vs. Harjinder Singh & Ors.
8. (2005)5 SCC 142 - Surinder Singh Vs. Kapoor Singh & Ors.
9. AIR 2005 SC 104 - Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass.
10. AIR 2009 SC 365 - Ravi Prakash Agarwal & Ors. Vs. Rajesh Prasad Agrawal & Ors.
11. AIR 2008 SC 2291 - Mandali Ranganna vs. T.Ramachandra
52. In Guruswamy Nadar's case (supra), while dealing with Section 19 of the Specific Relief Act, the Apex Court has held that in case sale affected after filing of the suit for specific performance, principle of lis pendens will apply notwithstanding the fact that right to subsequent purchaser will be protected u/s.19(b). However, in the present case, the sale is not affected pending the litigation and, therefore, this case would not help the respondents.
53. In Har Narain's case (supra) as well as R.K. Mohammed Ubaidullah (supra), it was held that subsequent purchaser could not be held to be bonafide purchaser for value. It is also held in the same judgment that the fact before the Court was different inasmuch as the second sale was subsequent to the filing of the suit. Therefore, doctrine of Page 28 of 36 C/AO/312/2008 CAV JUDGMENT lis pendens was applied. However, in the present case, the suit is filed after the registered sale-deed in favour for respondents No.19 to 26 and hence this judgment would not help the plaintiff.
54. The case of S.Gopal Reddy (supra) and Smt.Bhagwan Kaur (supra) are dealing with expert evidence. Though it is stated that it is a weak type of evidence and Courts did not consider it as conclusive evidence, it cannot be ignored that both these cases are criminal cases and discussion is for final determination for conviction of the person and, therefore, what is held at that stage cannot be equited with the question of prima facie evidence. It cannot be ignored that in the present case, defendants are not relying only and solely on the report of handwriting expert, but it is one of the ground to prove that agreement to sell in question as forged document as a corroborative evidence . Even at the cost of repetition it must be recollected that the agreement to sell does not disclose material information like date of execution, area of land in question for which sale is confirmed and most importantly it does not bear the signatures of all co-sharers. It discloses the name of dead person as its executor and in a previous suit, same document was filed as if it was executed on 2.1.1991 on a stamp paper, which was produced on 15.10.1991. Moreover, if we scrutinize the cited cases, it is certain and clear that even Apex Court has relying upon its previous decision in Magan Bihari Lal Vs. State of Punjab reported in AIR 1977 SC 1091 observed that even handwriting expert opinion is unsafe to treat as sufficient basis for conviction. It may be relied upon when supported by either items of internal and external evidence. Therefore, such evidence can be certainly used for corroboration of other evidence. In the present case, when signatures and thumb impression of the persons whose names are not disclosed as signatories of the document and the persons whose names are disclosed as executor of the document have not put their hands on the document and when some of such person says that they have never signed such Page 29 of 36 C/AO/312/2008 CAV JUDGMENT document, when their signature is shown as an executor of the document, there is prima facie case of forgery and if it is supported by opinion of experts, one private and one FSL, Gandhinagar, confirming that the signatures on the agreement to sell are not of the persons who alleged to have signed the document, it can certainly be considered as prima facie evidence against the plaintiff.
55. In the case of Zenit Mataplast Private Limited (supra), it is held that granting of interim order depends upon facts and circumstances of each case, but usually governed by three basic principles viz. prima facie case, balance of convenience and irreparable loss. There is no doubt about such settled legal position, but what is observed by the Apex Court in paragraphs 30 and 31 of such judgment is with reference to the facts and circumstances of such reported case and it cannot be relied upon without verifying the facts and circumstances of the case on hand. If we peruse and scrutinize paragraph 30 referred by the learned counsel for the respondents, then also it is clear that interim order is to be passed based on prima facie findings. However, it cannot be ignored that the decree of specific performance itself is discretionary decree and compensation is available in absence of specific performance of such contract and when there is no prima facie evidence in favour of the plaintiff, only because of some observation in the reported case, it cannot be held that plaintiff is entitled to relief as claimed for.
56. Judgment in Kartar Singh's case (supra) is in conflict with judgment in Ashwinkumar Shah (supra) in SLP (Civil) No.17481 of 2000 inasmuch as in Kartar Singh's case (supra) it is held that specific performance can be granted in respect of vendor's share when property is held jointly and when only one of the joint owner enters into agreement to sell. In other words, it is held that specific performance in respect of share of property cannot be refused on the ground that property will have to be partitioned, further confirming that vendee has right to apply for Page 30 of 36 C/AO/312/2008 CAV JUDGMENT partition and get share demarcated. With due respect, any other judgments of the Apex Court are not confirming such stand, but in any case, in the present case, when none of the executor are confirming the execution or in other words, when agreement to sell in question is forged one, this citation would not help the plaintiff. At the most, it may go against Maniben who has tried to differentiate herself from other co- sharers by filing separate suits.
57. Case of Surinder Singh (supra) is though dealing with the specific performance of agreement, it simply reaffirms that equity is also to be looked into while deciding such suit. However, in the present case, equity certainly does not play any role in favour of the plaintiff since the documents relied upon by the plaintiff are prima facie forged.
58. In Maharwal Khewaji Trust (supra) the Hon'ble Supreme Court has while dealing with Order 43 Rule 1 as well as Order 39 Rule 1 of the CPC specifically held that the ground that legal proceedings are likely to take long time, is exceptional circumstance to allow change by imposing condition. However, scrutiny of the judgment makes it clear that it was with reference to the specific facts and circumstances when otherwise, plaintiff has got prima facie case in his favour. Whereas in the present case, when prima facie case is not in favour of the plaintiff, on the contrary it goes against the plaintiff that only because of pendency of litigation, relief cannot be considered in favour of particular litigant.
59. In Ravi Prakash Agarwal's case (supra) though Hon'ble Supreme Court has held when injunction granted earlier was continued for 9 years, subsequent recall would be improper and only remedy is early disposal of the suit, which was directed by the Supreme Court. However, if we peruse the entire judgment, though it is for cancellation of sale-deed, there is no specific evidence regarding fraud or otherwise by the plaintiff and, therefore, when injunction was continued for 9 years, the Supreme Page 31 of 36 C/AO/312/2008 CAV JUDGMENT Court has instead of entering into the merits of the case, dispose of the matter by direction of early disposal of the suit. However, such judgment does not lay down the law that even if there is no prima facie evidence, the appellate Court cannot set-aside the impugned judgments. If we directly follow such judgment, then, there would be no necessity of provision of appeal and even if appeal is filed, concerned litigant would like to prolong the matter to get the benefit of such reported case and, therefore, only because of one such cited case, it cannot be held that in all such cases only because of pendency of appeal against impugned order for long time, the appeal is to be dismissed by confirming the impugned order even if such impugned order is arbitrary, perverse, illegal and not based upon the settled legal position as well as in absence of prima facie evidence to justify such impugned judgment.
60. On the contrary in AIR 2009 SC 1527 - Aloka Bose Vs. Parmatma Devi & Ors., the Hon'ble Supreme Court has came across the similar facts of forged agreement to sell and confirmed that when trial Court has accepted the opinion of expert regarding signature on agreement, such finding cannot be disturbed.
61. In Mandali Ranganna's case (supra), the Hon'ble Supreme Court was dealing with the issue regarding possession and what is held is only because of the reason that possession was never challenged by the other side for almost for three decades and, therefore, the Apex Court has held that in addition to basic elements, equitable relief is also to be taken into consideration. However, in the present case, when prima facie case is not in favour of the plaintiff and when plaintiff is not in possession, there is no question of equitable balance in his favour and hence this judgment also does not help the plaintiff in any manner.
62. Surprisingly, now when because of the complaint by the land owner, FIR was filed and plaintiff as well as Gosaibhai N.Patel is arrested Page 32 of 36 C/AO/312/2008 CAV JUDGMENT by the police for committing forgery, only because he is released on bail by this High Court, he is relying upon such orders dated 9.12.2013 and 28.1.2014 in Criminal Misc.Application (for regular bail) Nos.17921 of 2013 and 476 of 2014 respectively submitting that High Court has granted him bail and, therefore, he has not committed any forgery. On the contrary, perusal of such judgments make it clear that while scrutinizing the investigation, this High Court (Coram: Hon'ble Mr.Justice C.L.Soni) has in above orders observed that the police has now got the report of FSL, which clearly revealed that signatures on the agreement to sell are forged and that when power of attorney and agreement to sell was executed, one of the co-owner was not alive. However, since the chargesheets is filed in respect of all such offences, Court has released the plaintiff and Gosaibhai N.Patel on bail. However, releasing on bail cannot be treated as acquittal. On the contrary, the chargesheet is filed as aforesaid, it is a prima facie evidence regarding creation of forged document and, therefore, if impugned judgment is based upon such forged document, then, there is no option but to interfere with the impugned judgment by quashing and setting-aside the same. That all the observations herein are only for the purpose to decide the present Appeal from Order and, therefore, the trial Court or the Civil Court where another suit is pending shall decide the matter in accordance with law on available evidence without being influenced by any observation or discussion in this judgment.
63. In view of above facts and circumstances, the Appeal from Order is allowed. Thereby, the impugned order below Exhs.5, 6 and 33 dated 6.9.2008 in Special Civil Suit No.110 of 2006 is hereby quashed and set- aside.
64. In view of order in Appeal from Order, Civil Application does not survive and stands disposed of.
Page 33 of 36 C/AO/312/2008 CAV JUDGMENT(S.G.SHAH, J.) binoy (Contd.) FURTHER ORDER Dated: 01.05.2014 Learned senior counsel Mr.R.S.Sanjanwala appearing with Mr.Dilip L.Kanojiya, learned advocate for respondent No.1 is requesting to stay the operation and execution of this judgment/order and thereby to continue the interim injunction in their favour on the ground that such interim order is in force for almost eight years and, therefore, all of a sudden, if stay order is vacated by this Court, then in that case, present appellant being original defendant may enter into some transactions which may ultimately result into more complication and multiplicity of litigation.
It is also submitted that in due course, generally Courts are extending the stay which was in operation in such cases and, therefore, it would be appropriate to continue the interim relief in their favour for couple of weeks so as to enable them to get necessary documents translated for approaching the Hon'ble Supreme Court of India.
The above order categorically discloses the misdeeds committed by the plaintiff being respondent No.1 herein and the Presiding Officer, who has passed the impugned order. The relevant line of the impugned order is reproduced and typed in bold lines in paragraph 37, on page No.22 of above judgment.
Page 34 of 36 C/AO/312/2008 CAV JUDGMENTThis is a classic case to realise that how and why delay takes place in deciding the matter judiciously. Even if we do not find fault with any one individual or personally, the study of overall record of this case specifically discloses that how a judicial process has been abused by filing improper litigation based upon improper document and how a judicial officer has though observed that such documents are not proper, granted injunction based upon such documents and unfortunately such injunction continues till above order.
The record before this Court also shows that even for joining legal heirs and for some other interim orders, how objections are taken so as to see that interim order remains in force for long time.
In any case, pendency of any litigation may not be the ground to continue the interim relief if litigant is not entitled to such relief based upon the facts and law applicable to the case. It is evident from the record that plaintiff has filed a suit based upon a document which is stated to be signed by a person who died before two decades, i.e. a forged document.
In fact, I have restrained myself while dictating the main judgment to say anything against litigant and even the Presiding Officer who has passed such order. However, now, while rejecting the request for continuing of injunction, it would be appropriate to direct the Registry to place the papers of this judgment/order before the Hon'ble the Chief Justice to consider such case for study by appropriate authority/forum (judicial authority) on the subject that how and why there is delay in judicial process and if deem fit and proper, to verify that why concerned judicial officer has passed such impugned order.
Under the above circumstances, request made by learned senior Page 35 of 36 C/AO/312/2008 CAV JUDGMENT counsel Mr.R.S.Sanjanwala appearing with Mr.Dilip L.Kanojiya, learned advocate for respondent No.1 to stay the operation of above order is hereby rejected.
(S.G.SHAH, J.) binoy Page 36 of 36