AO/32520/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 325 of 2008 WITH CIVIL APPLICAETION No. 12033 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= PARSOTTAMBHAI RAMJIBHAI SETA - Appellant(s) Versus RAMESHBHAI OGADBHAI SETA & 1 - Respondent(s) ========================================================= Appearance : MR ASHISH M DAGLI for Appellant(s) : 1, MR LR PATHAN for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/12/2008 ORAL JUDGMENT 1. ADMIT. 2. Mr.L.R. Pathan, learned advocate waives the service of notice of admission on behalf of the respondents. 3. With the consent of the learned advocates appearing on behalf of the respective parties, present Appeal From AO/32520/2008 2/7 JUDGMENT Order is taken up for final hearing. 4. Present Appeal From Order is preferred by the appellant – original plaintiff to quash and set aside the order dtd.20/9/2008 passed by the learned 3rd Additional Senior Civil Judge, Bhavnagar Camp at Mahuva below application Ex.5 in Special Civil Suit No.78 of 2005 in dismissing the application Ex.5 and vacating the ad-interim injunction granted earlier. 5. The appellant herein – original plaintiff has instituted Special Civil Suit No. 78 of 2005 in the court of learned Civil Judge (SD), Bhavnagar against the respondents – original defendants for declaration and permanent injunction and to quash and set aside registered sale deed No.1520 executed in favour of the defendant No.2 dtd.6/7/2005 and 13/7/2005, alleging inter-alia that the said sale deed is without consideration and is obtained by fraud by the defendant Nos.1 and 2. 6. In the said suit, the plaintiffs submitted application Ex.5 restraining the defendants, more particularly defendant No.2, from interfering with the possession of the plaintiff and further restraining the defendant No.2 from alienating and/or transferring the suit property in any manner whatsoever. The learned trial court, initially AO/32520/2008 3/7 JUDGMENT granted ex-parte ad-interim injunction in terms of para 12(1), however, subsequently, considering the submissions made on behalf of the respective parties, dismissed the application Ex.5 and vacated the ad-interim injunction granted earlier by the impugned order dtd.20/9/2008. Being aggrieved by and dissatisfied with the order passed by the learned trial court below application Ex.5 in vacating the ad-interim injunction granted earlier, the appellant – original plaintiff has preferred present Appeal From Order. 7. Mr.Ashish Dagli, learned advocate appearing on behalf of the plaintiff has submitted that the learned trial court has committed an error of law in vacating the ad-interim injunction granted earlier and in dismissing the application Ex.5. It is submitted that the learned trial court ought to have appreciated that if the interim injunction as prayed for is not granted, it would amount to rejection of the suit at the stage of deciding application Ex.5. It is further submitted that the learned judge ought to have taken into consideration the settled possession of the appellant as emerged from the record of the case, more particularly the sale deed, on the basis of which the defendant No.2 is claiming right, is itself a subject matter AO/32520/2008 4/7 JUDGMENT of the suit and the document is alleged to have been made by the fraud. It is further submitted that the learned trial court ought to have appreciated that the defendant No.1 who was alleged to be power of attorney of the plaintiff, sold the land in question in favour of the defendant No.2, is the real brother. It is submitted that the defendant No.1 has taken disadvantage of the illiteracy of the plaintiff and has obtained signature of the plaintiff on the blank papers and stamp papers. Submitting accordingly it is requested to allow present Appeal From Order. 8. Present Appeal From Order is opposed by Mr.L.R. Pathan, learned advocate appearing on behalf of the defendants. It is submitted that, in fact, first Agreement-to-sale was executed by the plaintiff himself in favour of the defendant No.2 in the year 1999 and at that time Rs.4,00,000=00 was paid. That thereafter again another Agreement-to-sale was executed on 8/1/2002 and at that time Rs.5,00,000=00 was paid and Rs.5,00,000=00 was due and payable. It is submitted that it is not that the sale deed in favour of the defendant No.2 is without any consideration. It is submitted that subsequently the plaintiff executed power of attorney in favour of the AO/32520/2008 5/7 JUDGMENT defendant No.1 and in turn the defendant No.1 sold the land in question in favour of the defendant No.2 and on appreciation of evidence prima facie the defendant No.2 found to be in possession. Therefore, it is submitted that the learned trial court has not committed any error in dismissing the application Ex.5. Submitting accordingly it is requested to dismiss the present Appeal From Order. 9. Heard the learned advocates appearing on behalf of the respective parties. 10.Considering the impugned order and the sale deed in favour of the defendant No.2, it appears that even prior to execution of the power of attorney in favour of the defendant No.1 by the plaintiff, the plaintiff executed Agreement-to-Sale in favour of the defendant No.2 in the year 1999 and the valuation of the land in question was fixed at Rs.10,00,000=00 and amount of Rs.4,00,000=00 is alleged to have been paid. It appears that thereafter another Agreement-to-sale came to be executed by the plaintiff in favour of the defendant No.2 in the year 2002 and again Rs.5,00,000=00 is alleged to have been paid. It appears that thereafter, a power of attorney came to be executed by the plaintiff in favour of the defendant No.1 and on the basis of the same, the defendant No.1 has AO/32520/2008 6/7 JUDGMENT executed sale deed in favour of the defendant No.2 and the defendant No.2 is found to be in possession of the land in question. Considering the sale deed in favour of the defendant No.2, it appears that sale deed is in continuation of the earlier Agreement-to-sale and thus, the defendant No.2 is in possession of the land in question pursuant to the sale deed executed in his favour. Therefore, as on today, the defendant No.2 is the owner of the land in question. The submission and contention on behalf of the plaintiff that power of attorney was obtained by fraud and signatures were obtained on blank papers, are required to be considered at the time of trial on leading proper evidence. On appreciation of evidence, the learned trial court has found that the defendant No.2 is in possession of the land in question. 11.Now so far as the contention on behalf of the appellant that if the ad-interim injunction granted by the learned trial court is not extended, the suit would become infructuous and it would amount to dismissal of the suit at the stage of deciding application Ex.5, cannot be accepted. It is to be noted that any transfer during the pendency of the suit is always subject to the ultimate AO/32520/2008 7/7 JUDGMENT outcome of the suit and principle of lis-pendence will be applicable. Under the circumstances, the contention that if the ad-interim injunction is not granted and/or vacated, the suit is dismissed at the stage of deciding application Ex.5, cannot be accepted. Still it is observed that while dismissing the present Appeal From Order that any transfer during the pendency of the suit shall be subject to the ultimate outcome of the suit. 12.For the reasons stated hereinabove, present Appeal From Order deserves to be dismissed and is accordingly dismissed with above observations. In view of the dismissal of the Appeal From Order, the Civil Application is also dismissed. Ad-interim relief granted earlier is hereby stands vacated. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik