IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No 195 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO ------------------------------------------------------------- HEIRS OF NOORMOHMED UMARBHAI DARBAN Versus HEIRS OF DECD. SATARBHAI MUSABHAI DARBAN -------------------------------------------------------------- Appearance: MR JR NANAVATI, SR. ADVOCATE FOR MR YN RAVANI for Appellants. MR PG DESAI, SR. ADVOCATE FOR MS TRUSHA K PATEL for Respondents No. 1 to 4. MS DARSHANA DIVAKARA for Respondents No. 5/A & 5/B Respondent No.6(A) served -------------------------------------------------------------- CORAM : MR.JUSTICE J.R.VORA Date of decision: /09/2001 C.A.V.JUDGEMENT 1. The present Appeal From Order is filed by original defendant No.2(A) to 2(D) and 3(A) to 3(G) being aggrieved and dissatisfied by the order passed by Second Jt. Civil Judge (SD), Amreli, below Exh.5 an Application for the interim injunction in Spl. Civil Suit No. 62 of 2000, which is of dated 17th of April, 2001. By this Application Exh.5, learned Civil Judge (SD), allowed the Application - Exh.5 of the original plaintiffs and granted interim injunction in terms of Para 8A of the said Application. 2. As per the brief facts of the case, original plaintiffs - respondents No. 1 to 4 instituted Spl. Civil Suit No. 62 of 2000 before the Trial Court seeking relief through amendment of plaint subsequently of the declaration that the Mutation Entry No. 44 in the Village Form No.6 pertaining to the land bearing Survey Nos. 187, 17 1/1, 176, 188 and 152 of Village Uchchaiya, Taluka Rajula, District Amreli, be declared illegal and the same be declared without jurisdiction and nullity and other entries made in pursuant to above said entry in revenue record i.e. Entries No. 231, 235, 236, 131, 79, 96, 317, 295, 226 and 134 also be declared null, void, illegal and without jurisdiction. Further declaration also sought that the defendants have no right, title, or interest in the suit property, which belonged to the absolute ownership of the plaintiffs. Further declaration was also sought that compensation under the Land Acquisition Act are required to be paid to the plaintiffs and defendants have no authority to receive the amount of compensation for the suit land in question. The plaintiffs in the above said suit also sought the relief of permanent injunction to the effect that defendants be restrained from transferring, selling and disposing of the suit property by way of gift, etc. of the suit land in question to any third parties. Through Application Exh.5 an interim relief was sought to the above effect that the defendants be restrained from transferring or alienating the suit land in question during the pendency of the suit. Initially, ad interim relief was granted to the plaintiff and thereafter it was made absolute, and being aggrieved, this Appeal is filed by the above said defendants. 3. The history of the case goes beyond the period of 50 or more years from now. It is the case of the plaintiffs that one Musabhai Umarbhai of village Uchchaiya had purchased the property in an auction and for which they have relied on a rojkam which is at Mark 4/9 of the record of the Trial Court and basing this and some accounts of the erst while State, it was emphatically stated by the plaintiffs that Musabhai was the only owner of the property and the Entry No.44 in the Revenue Record in the joint name of the brothers of Musabhai was without jurisdiction and has no force of law. The facts go to show that there were 5 brothers, namely, Musabhai Umarbhai, Abdulkarim Umarbhai, Noormohmmed Umarbhai, Kasambhai Umarbhai and Isabhai Umarbhai. Facts further go to show that in the year 1959 in the revenue record vide Entry No.44 after the Independence, the land i.e. land in question was recorded in the name of these five brothers as joint tenants and thereafter in subsequent entries, the partition amongst all these five brothers, and further partition amongst the heirs of each of the brothers has been recorded, and this Entry No.44 posted in 1959 and subsequent entries of revenue record are challenged in the suit stating that Musabhai Umarbhai was alone the owner of the property and none else has any authority to deal with the suit property. The plaintiffs 1, 2 and 3 are sons of Musabhai Umarbhai Darbon. Since plaintiff No.3 has died, his heirs have been brought on record. While the defendant No.1 Abdul Karimbhai Umarbhai has since died, his heirs are on record as defendants No.1(A) Umarbhai Abdul Karimbhai Darban and 1(B) Mohmmedali Abdul Karimbhai Darban. Other brothers of Musabhai Umarbhai are defendants in the suit. All the three brothers i.e. Abdul Karimbhai Umarbhai, Noormohmed Umarbhai Darbn and Isa Umarbhai Darban have since died, their heirs are on record as defendants. 4. The learned Trial Judge has believed the case of the plaintiffs that in Rojkam at Mark 4/9, according to the learned Civil Judge (SD), Amreli, Musabhai Umarbhai had purchased the property in an auction from the State and he was alone the owner of the property in question and, therefore, the entries made in the revenue record vide Entry No.44 in 1959 and subsequent entries had no evidentiary value, which other wise bears only presumptive value and hence the interim injunction was granted by the trial court to the plaintiffs. 5. Learned Sr. Counsel Mr. J.R. Nanavatti for the appellants - original defendants, learned Sr. Counsel Mr. P.G. Desai for the respondent - original plaintiffs and learned Advocate Ms.Darshna Divakarar for respondents No. 5(A) & 5(B) were heard. Learned Advocate Mr. Nanavati objected that the relief claimed is barred by the statute i.e. Bombay Land Revenue Code 1879. That Section 135-L bars suit against the Government or any officer of Government for the entries made in the revenue record. Learned Advocate Mr. Nanavati further stated that the revenue record produced before the Trial Court denotes that all the five brothers including Musabhai Umarbhai were in the possession of the suit land right from 1951 and thereafter vide Entry No. 44 which is a promulgation entry in pursuance of determination of the tenancy rights of five brothers is posted in the revenue record, which continues till today and no attempt at all has been made by any of the plaintiffs to challenge this entry and now when the Government has acquired the land and compensation is being paid to the defendants, the suit came to be filed in this manner in which, however, plaintiffs are able to obtain interim relief. Learned Advocate for the appellants vehemently stated that the suit is filed suppressing the materials which is on record and not placing the same before the Trial Court. It is stated that a proceedings, between the parties in which the plaintiff No.1 Satarbhai Musabhai Darban also was the party, under the Lands Ceiling Act was initiated against both the parties of the suit and vide Ceiling Case No. 74/63 on admission of the plaintiffs as well, the competent authority in the Ceiling Act, vide his order somewhere in March 1966 decided that each of the parties including plaintiffs as well as defendants were holding the land including the present suit land allotted to them to their respective shares and, therefore, there was no excess land. This decision of the Mamlatdar, Rajula, in Ceiling Case No. 74/63 which is placed on record has not been challenged further by any of the parties and has become final amongst the plaintiffs and the defendants. It was urged that not only that but the mutation entries in pursuance of Entry No.44 further entries were posted wherein at the request of the parties, the partition between the brothers and again heirs of each of the brothers were recorded by the revenue authorities, and these entries of revenue record have never been challenged by the appellants. Mr. Nanavati urged that this is not a case which rests only on the revenue entries made by the revenue authorities but this is a case wherein revenue authorities recorded the rights of the parties as asserted by themselves by making signed statements and inspecting the local position of the land. Therefore, according to Mr. Nanavati, there was an admission on the part of the plaintiffs that all the five brothers including Musabhai were holding the shares as tenant-in-common. In pursuance of tenancy proceedings they become the joint owners of the property which was around 300 acres in all and was partitioned amongst the five brothers. Thereafter, each of the brothers was holding his own share and on the death of brothers, their legal heirs were holding the share which was allotted to the particular brothers. The property which was allotted to the plaintiffs out of the total property of 300 acres is in the possession of the plaintiffs and they are enjoying the same. The property which was allotted to the share of the defendants are in the possession of the defendants since last 50 years, and they are cultivating and enjoying the property. This position remains since 1951 till today and when the land acquisition proceedings were initiated in respect to the property which is in possession of the defendants, the suit came to be filed. In respect to the alleged title deed on which the plaintiffs have placed much reliance on Mark 4/9 Rojkam. Mr. Nanavati argued that the same is not the title deed as construed by the plaintiffs which is placed on Mark 4/9. It is urged that this is a mere rojkam whereby a property of the erst while girasdars was obtained by Musabhai in an auction for cultivation only. This is of 1947 and before the independence. This rojkam denotes that there will be a writing in pursuance of this rojkam on a stamp paper. The writing is not produced by the plaintiffs denoting that the same position i.e. the land which was obtained by Musabhai for the cultivation continued after 1947. In any case, this is not the evidence denoting that Musabhai Umarbhai alone purchased the suit property from the then State in an auction, as has been understood by the trial court. One of the brothers Abdullabhai Musabhai, as fact goes to show that, in May 1965 to an alleged reply to a notice of the learned Advocate for the plaintiffs, has admitted that the property belonged to Musabhai, is not binding on the defendants. Even this supporting defendants, Abdul Karimbhai Umarbhai was, in fact, in possession of his share on partition and his heirs are enjoying the property, which is allotted to the share of Abdul Karimbhai, and that, the reply of Abdul Karimbhai Umarbhai, which is placed at Mark 4/6 of the Trial Court, is absolutely not useful to the plaintiffs. It is urged that the Trial Court did not even attempt to enter into the appreciation of these facts. It was in shape of evidence on record and trial court proceeded to consider the only evidence of rojkam and misconstrued the same to the title deed, by which it was held that Musabhai purchased the property in an auction from the State and he was the sole owner of the property. On the above grounds, it is urged that the Appeal be allowed and the judgment and order of the Trial Court which is impugned be quashed and set aside. 6. On the other hand, learned Advocate Mr. P.G. Desai, for the respondents has urged that the defendants have not shown any documents by which they have become the owner of the suit property. Mr. Desai again has placed heavy reliance on Mark 4/9, by which it is urged that this is the document by which Musabhai has purchased the property in an auction from erst while State and the revenue entries subsequently made are wrongly made, which has only presumptive value. It is urged that from 1947 to 1955, the name of Musabhai continued in revenue record and account, which is placed at page 267 (Bhanakatu), which denotes that the amount of the auction purchase is deposited in the name of Musabhai in the accounts of the State. The attention of this Court is drawn to the Village Form No. 13 wherein also the name of Musabhai appears as the holder of the land in question. It was urged that vide written statement, the defendants have claimed the property as heirs of Musabhai. It was urged that it is against the principle of Mohammedan Law. The attention of this Court was also drawn to the provisions of the Mohammedan Law. It was also urged that along with the claim of legal heirs of deceased Musabhai, the defendants have also claimed the property, taking shelter of the principle of adverse possession, which is not permissible. The attention of this court was also drawn in respect to Entry No.44. The attention of this Court was also drawn to Rule 105 of the Gujarat Land Revenue Rules, 1972 in respect of the Entry No.44. Rule 105 denotes that when the record of rights is first introduced in any village, as soon as the preparation has begun, the village accountant shall cause notice thereof to be given by beat of drum and shall paste a written notice in the chavdi. He shall also write at the head of the record a certificate that such notice was duly given. Prior to the preparation of the fair copy of the record of rights, the village accountant shall prepare a rough copy of the record in form of an Index of Lands with all rights noted against each parcel. Until the fair copy is prepared, such rough copy shall be used as and be deemed to be the register of mutations, and the provisions of the code and of these rules which apply to the said register shall apply so far as may be to such rough copy, and the provisions of Rule 111 respecting the introduction of the rewritten copy of the index shall apply so far as may be to the introduction of this first fair copy of the record. Attention of this Court was also further drawn on Rule-111 of the said Rules, which denotes, when the re-written index of land is reported to be complete, the Collector or sub-divisional officer shall fix a date for its inspection and shall cause notice thereof to be given calling upon all persons interested to appear on such date at a specified place in or in the immediate vicinity of the village concerned, and notifying that any such persons may before such date inspect the Index on application. On the date and at the place appointed the Collector or sub-divisional officer shall compare the new copy with the old index and the Diary of mutations, cause such portions thereof to be read out as any of the persons present may desire to hear, read and make any correction that may be necessary. Such officer shall then sign the new Index and subscribe below it a certificate that the entries therein have been duly tested and found correct. From these two provisions, learned Advocate for the respondents Mr. Desai urges that, firstly, there is no evidence on record that individual notice was served on the parties as envisaged by R.111(1) of the said Rules, and that no certificate is subscribed below the entries as envisaged by sub-Rule (3) of R.111 and, therefore, the Entry No.44 posted on 1959 which is at Exh. 29/1 is of no consequence at all, because neither the individual notices were issued to the parties nor has been certified as per Sub-rule (3) of Rule 111 of the said rule. 7. The attention of this Court was also drawn to Sec. 182 of the Bombay Land Revenue Code, 1879, which denotes that the sale by auction purchase, on confirmation will be certified and this certificate shall state the name of the person declared at the time of sale to the actual purchaser, and any suit brought in a Civil Court against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement, the name of the certified purchaser was used, shall be dismissed. Relying on this, learned Advocate Mr. Desai urges that Mark 4/9 is the certificate of auction purchase by Musabhai Umarbhai and defendants cannot be heard to say that they are the joint owners of the land in question against the said auction purchase certificate. Attention of this Court was also drawn to Sec. 135 to 141 of the Mohemmedan Law wherein the brothers of the deceased are not entitled to share in the property of a deceased Muslim. Attention of this Court also was drawn to the reply of Notice by Abdul Karim Umarbhai, which is placed at Mark 4/6, which denotes in what circumstances the revenue entry No.44, on which the defendants had placed reliance on such entries, came into existence. Abdul Karim has stated in his reply that that to avoid the operation of Land Ceiling Act, the defendants persuaded Abdul Karimbhai and others to cause the entries made in the revenue record. Learned Advocate Mr. Desai vehemently urged that in these circumstances, at this juncture, the plaintiffs have undoubtedly "triable issue" to be decided in the suit and, therefore, the plaintiffs are entitled to the interim injunction as prayed for. It was urged that at this juncture only the transfer of the property to third party is sought to be restricted and nothing more than that is prayed for. It was urged that this relief is sought, for the purpose, that if the property changes hand, the whole suit of the plaintiffs will be frustrated, which has `triable issue'. It was urged that the proceedings to challenge Entry No. 44 are initiated by the plaintiffs and the Collector in appeal has though decided against the plaintiffs but the said order which is sought to be placed on record is challenged by further proceedings. Learned Advocate Mr.Desai placed on reliance on a decision of English Court in the matter of AMERICAN CYANAMID CO v. ETHICON LTD., reported in (1975) 1 ALL ER 504, wherein it is held that when the case is not frivolous, on mere balance of convenience, the plaintiffs may be granted interim injunction in his favour. Mr. Desai urges that, therefore, at present, balance of convenience is in favour of the plaintiffs and the plaintiffs are entitled to the interim injunction granted and the Appeal be dismissed. 8. From the rival contentions and perusing the record and the order impugned, it appears that this is the case wherein although the principle of grant or refusal of temporary injunction is well settled, the same is required to be re-stated having regard to the peculiar facts of this case and the manner in which the case has been dealt with by the learned Trial Judge. Needless, it is to say that the temporary injunctions are dealt with by the Civil Procedure Code vide Order 39. The principles which governs the exercise the discretion conferred by this Rule can be set out as under for the guidance. 8.1 Firstly, the plaintiffs must satisfy that there is serious question to be tried in the suit and that on the facts before the court there is a probability of his being entitled to the relief asked for by him. We may label this as a prima facie case of the plaintiffs. 8.2 Secondly, the plaintiffs must satisfy to the court that the interference of court is necessary to protect him from that species of injury which the Court calls irreparable, before his legal right can be established on trial. We may label this as an irreparable injury. 8.3 Thirdly, that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. We may label this as a balance of convenience. In the present case, this Court is not in agreement with the argument of learned Advocate Mr. Desai that merely establishing balance of convenience in his favour, the plaintiff is entitled to temporary injunction in his favour. That is not the law in India as contemplated in Order 39 of the Code of Civil Procedure. The English decision cited by Mr. Desai (supra) will have no relevance at all with reference to Order 39 of the Civil Procedure Code because the Code itself is exhaustive and explanatory. Even other wise, the decision of the English Court cited above was in respect of the breach of a trade mark wherein the English Court observed that if the case is not frivolous even on the balance of convenience, the plaintiffs may be granted interim injunction. But that is not the law in India as provided under Order 39 of the Civil Procedure Code. On the contrary, the established law of this Country is that the existence of prima facie case alone is not by itself sufficient to grant interim injunction in the favour of the plaintiffs. The plaintiffs must further satisfy the second as well as the third conditions mentioned above to be entitled for interim injunction. Meaning thereby that the plaintiffs must establish the above three conditions to have an order of injunction in his favour. In absence of any one of the above conditions, the plaintiffs would not be entitled to any injunction. Not only that this being the discretionary relief even if plaintiffs establish the above three conditions in the given circumstances, Court may refuse the injunction having regard to the conduct of the plaintiffs and in the circumstances of the case. 9. Examining the documents of title as alleged by the plaintiffs, which is placed at Mark 4/9, which is of the year 1947, it is clear that by no stretch of reasoning, it could be labelled as the certificate of auction purchase. The contents of the documents itself denotes that the lands belong to the State. Thereafter, it was termed as girasdars land which was given for the cultivation to some parties, who surrendered the land to the State, and in auction, the same was given to late Musabhai Umarbhai for cultivation. What is produced before the Court is only rojkam. This rojkam denotes that a formal document in this respect also was required to be executed. However, such formal document has not seen the face of the record. But, undoubtedly, nowhere in this rojkam also it is mentioned that the land in question is sold as a owner to late Musabhai Umarbhai. A decision of the Mamlatdar of the Land Ceiling Act throws light on this, which says that the girasdars land was given to the private parties for cultivation. This decision is at Exh. 29/2. The right of cultivation in the name of Musabhai whether was continued after 1947 and after this rojkam, is still in dark, and the plaintiffs had not explained this position that after 1947 Musabhai even as a holder as cultivator of the land was continued. While the revenue record placed on the record vide Exh. 28/1 to 28/9 which are the Village Form Nos. 7 and 12 consistently and continuously denote that the land was in the joint name of the five brothers including Musabhai in the revenue record since 1951. Therefore, the rojkam produced by the plaintiffs at Mark 4/9 and `Bhanakatu' produced by the plaintiffs on the record is absolutely of no use to decide that the late Musabhai Umarbhai was the auction purchaser of the land vide above rojkam. At