AO/378/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 378 of 2008 With CIVIL APPLICATION No. 13298 of 2008 In APPEAL FROM ORDER-STAMP NUMBER No. 267 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 ? ========================================================= BHAVESH MOHANBHAI DESAI & 1 - Appellant(s) Versus MOHANBHAI KARMSHIBHAI DESAI & 3 - Respondent(s) ========================================================= Appearance : MR MAHESH BHAVSAR for Appellant(s) : 1 - 2. None for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 15/12/2008 ORAL JUDGMENT 1. Present Appeal from Order is preferred by the appellants original plaintiffs under Order 43 Rule 1 of the Code of Civil Procedure challenging the impugned order passed by the AO/378/2008 2/6 JUDGMENT learned 6th Additional Senior Civil Judge, Junagadh dated 8.10.2008 passed below Exh.5/6 in Special Civil Suit No. 3 of 2006, by which the learned Judge has dismissed the said application submitted by the plaintiffs for interim injunction restraining the defendants, their agents and servants from interfering with their possession. 2. Appellants original plaintiffs had instituted Special Civil Suit No. 3 of 2006 in the Court of learned Principal Senior Civil Judge, Junagadh for declaration and partition of the suit properties by submitting that the defendants No.1 and 2 have no right to transfer or sale the disputed suit properties. In the said suit, the appellants original plaintiffs submitted application Exh. 5/6 for interim injunction restraining the defendants from interfering with their possession by submitting that the defendants are trying to disturb their possession and that there is no entry in favour of the defendants No. 3 and 4. It is further submitted that even there is no loan of Rs. 30,000/- of the Bank and, therefore, plaintiffs are in possession of the disputed land in question. The said application Exh. 5 was resisted by the defendants more particularly, defendants No. 3 and 4 by submitting that they are bonafide purchaser of the disputed land since 29.4.2002 and since then they are in AO/378/2008 3/6 JUDGMENT possession of the disputed land in question. It is further submitted that as such the plaintiffs were trying to disturb their possession and they had instituted Regular Civil Suit No. 32 of 2005, in which after hearing the plaintiffs, there is injunction against the plaintiffs vide oder below Exh. 7 in the said suit by holding that the present plaintiffs are not in possession of the disputed land. Therefore, it was requested to dismiss the application Exh. 5. That the learned trial Court by impugned order dated 8.10.2008 had dismissed the application Exh.5 refusing to grant injunction in favour of the appellants original plaintiffs. Being aggrieved and dissatisfied with the said order, the appellants-plaintiffs have preferred the present Appeal from Order and Civil Application for interim relief therein. 3. Shri Mahesh Bhavsar, learned advocate appearing for the appellants-plaintiffs has vehemently submitted that when the suit has been instituted for declaration and partition of the joint family properties, to avoid any further multiplicity of proceedings and third party rights, learned trial Court ought to have allowed the application Exh.5. It is submitted that as such defendants No. 1 and 2 had no authority and or right to sell the joint family properties and, therefore, transaction / sale deed in favour of the defendants No. 3 and 4 are AO/378/2008 4/6 JUDGMENT null and void and therefore, the defendants No. 3 and 4 cannot claim any legal and valid title on the basis of the sale transaction in their favour. It is further submitted that the appellants are in possession of the land in question which can be fortified from the fact that even they had taken the loan of Rs. 30,000/- from the Bank. Therefore, it is requested to allow the present Appeal from Order. 4. Heard Shri Mahesh Bhavsr, learned advocate for the appellants-plaintiffs and considered the impugned order. It is to be noted that defendants No.3 and 4 have become absolute owner by registered sale deed dated 29.4.2002 and since then they are in possession of the land in question. It is also required to be noted that as such the defendants No. 3 and 4 herein had instituted Regular Civil Suit No. 32 of 2005 against the appellants-plaintiffs for permanent injunction and there is an injunction against the appellants-plaintiffs and in favour of the defendants No. 3 and 4 herein pursuant to the order passed by the learned trial Court below Exh. 7 in the aforesaid suit. It is true that against the order passed below Exh. 7 in aforesaid Regular Civil Suit No. 32 of 2005, appeal is pending before the District Court, however there is no stay. Thus, the injunction against the appellants-plaintiffs and in favour AO/378/2008 5/6 JUDGMENT of the defendants No. 3 and 4 is operating. Learned trial Court in the aforesaid suit below Exh. 7 has specific found that defendants No. 3 and 4 herein to be in possession of the disputed land and it is specifically found that the appellants-plaintiffs are not in possession of the land in question. Thus, it appears that if any injunction is granted in favour of the appellants-plaintiffs and automatically appeal preferred by the appellants-plaintiffs before the District Court would be allowed and there will be two conflicting injunction which is not permissible. Under the circumstances and in view of the above, more particularly, when defendants No. 3 and 4 are the purchaser who have purchased the land in question by registered sale deed dated 29.2.2002 and the present suit has been filed in the year 2006 only after the suit instituted by the defendants No. 3 and 4 herein and obtaining injunction, considering the above when the learned trial Court has rejected the application Exh. 5, it cannot be said that the same is in any way illegal and / or learned trial Court has committed any error, which does not call for interference of this Court. There is no substance in the present Appeal from Order, which deserves to be dismissed and is accordingly dismissed. CIVIL APPLICATION NO. 13298 OF 2008 AO/378/2008 6/6 JUDGMENT In view of the dismissal of the Appeal from Order, no order in Civil Application. (M.R.SHAH,J.) kaushik