AO/375/2007 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 375 of 2007 With APPEAL FROM ORDER No. 86 of 2007 With CIVIL APPLICATION No. 3373 of 2007 In APPEAL FROM ORDER No. 86 of 2007 With CIVIL APPLICATION No. 4647 of 2007 In APPEAL FROM ORDER No. 86 of 2007 With CIVIL APPLICATION No. 13886 of 2007 In APPEAL FROM ORDER No. 86 of 2007 With CIVIL APPLICATION No. 13006 of 2007 With CIVIL APPLICATION No. 13831 of 2007 In CIVIL APPLICATION No. 13006 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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 ? ========================================================= RASHEDAKHATUN D/O TASDUKHHUSAIN - Appellant Versus KALPATARU LAND (SURAT) PVT LTD & 6 - Respondents ========================================================= Appearance in AO No.375 of 2007; CA No.13006 of 2007 and CA No.13831 of 2007 : AO/375/2007 2/29 JUDGMENT MR S.N.SHELAT, SENIOR COUNSEL WITH MR PR NANAVATI for the Appellant. MR P.C.KAVINA WITH MR AB MUNSHI for Respondent No.1. NOTICE SERVED BY DS for Respondent Nos.2 - 7, 7.2.2, 7.2.3,7.2.4 DS AFF.NOT FILED (N) for Respondent No.7. Appearance in AO No.86 of 2007; CA No.3373 of 2007 and CA No.13886 of 2007 : MR MIHIR THAKORE, SENIOR COUNSEL WITH MR MTM HAKIM for the Appellant. MR S.B.VAKIL, SENIOR COUNSEL WITH MR AS VAKIL for Respondent No.1. Appearance in CA No.4647 of 2007 : MR Y.N.RAVANI for the applicants. MR MIHIR THAKORE, SENIOR COUNSEL WITH MR MTM HAKIM for the Respondent No.1. MR S.B.VAKIL, SENIOR COUNSEL WITH MR AS VAKIL for Respondent No.2. ========================================================= CORAM : HONOURABLE MR.JUSTICE DN PATEL Date : 12/03/2008 ORAL JUDGMENT 1. These Appeals from Order have been preferred under Order XLIII Rule 1(r) of Code of Civil Procedure,1908, by the appellant (original plaintiff in Special Civil Suit No.388 of 2006 and original defendant No.7 in Special Civil Suit No.143 of 2007) against the judgment and order dated 27th September,2007 below Exh-5 application in Special Civil Suit No.143 of 2007 passed by learned 2nd Additional Senior Civil Judge, Surat, wherein stay was granted by the Trial Court as well as against judgment and order dated 23rd February,2007 below Exh-5 application in Special Civil Suit No.388 of 2006 passed by Learned Third Additional Senior Civil Judge, AO/375/2007 3/29 JUDGMENT Surat, wherein, stay was not granted by the Trial Court. Suit No.388 of 2006 is filed by the appellant whereas Suit No.143 of 2007 is filed against the appellant. In both the Suits Exh-5 applications are decided against the appellant and, therefore, Appeal from Order No.86 of 2007 and Appeal from Order No.375 of 2007 are preferred. F A C T S : 2. The present respondent of both the Appeals from Order i.e. Kalpataru Land (Surat) Pvt.Ltd. has instituted Special Civil Suit No.143 of 2007 along with injunction application at Exh-5 before the Trial Court, whereas, the present appellant had instituted Special Civil Suit No.388 of 2006 along with injunction application at Exh- 5, before the Trial Court. In Special Civil Suit No.143 of 2007, stay was granted to the respondents (original plaintiff of Special Civil Suit No.143 of 2007) by the Trial Court, whereas, in Special Civil Suit No.388 of 2006, stay was refused by the Trial Court to the appellant (original plaintiff of Special Civil Suit No.388 of 2006) and, therefore, the appellant has preferred both the aforesaid Appeals from Order, under Order XLIII Rule 1(r) of Code of Civil Procedure, 1908, against the orders passed by the Trial Court. Thus, the present appellant is a original plaintiff in Special AO/375/2007 4/29 JUDGMENT Civil Suit No.388 of 2006, in which, the stay has not been granted by the Trial Court, whereas, the present appellant is original defendant in Special Civil Suit No.143 of 2007, in which, stay has been granted by the Trial Court. 3. It appears that the whole dispute is for the land bearing original Survey No.400 admeasuring about 3287 acres, situated at Village: Abhva, District: Surat. This survey number was subsequently divided into three new revenue survey numbers bearing Survey Nos.505, 506 and 507. The suit property is situated in Survey No.506 admeasuring about 2814.18 acres, situated at Village: Abhva, District: Surat. 4. Both the plaintiff as well as defendant are purchasers of the suit property from their predecessor- in-title, as alleged by them and the whole issue is revolving around the legal heirs of Nawab of Baroda. Both plaintiff as well as defendants have referred in detail, who are the ancestors of the suit property and various wills, gift deeds, earlier Civil Suit decided by the Bombay High Court and on 29th September,1896 in Appeal Nos.10, 73 and 97 all of 1891 and several other orders passed in subsequent suits, several proceedings on AO/375/2007 5/29 JUDGMENT revenue side, several judgments delivered by the Hon'ble Supreme Court as well as by other High Courts, have been referred before this Court. The facts, contentions and judgments, which are relevant in this judgment, are referred hereinafter. 5. It appears from the facts on record that the present appellant (original plaintiff in Special Civil Suit No.388 of 2006 and original defendant in Special Civil Suit No.143 of 2007) are relying upon the following documents in their favour, for establishing prima facie case, balance of convenience and for establishing irreparable loss : (a) OWNERSHIP : There is a registered sale deed dated 19th July,2006 executed in favour of the appellant by the Kausharjahan Syed (wife), Jiyaulhasan Syed (son), Sahistabegum (daughter) and Fazlinabanu (daughter), who are legal heirs of Nurulhasan Latifuddin Kazi, who died on 24th February,2006. Thus, appellant is claiming ownership upon suit land, by the virtue of registered sale deed in her favour. (b) Possession : Learned counsel for the appellant has relied upon the decision dated 29th September,1896 AO/375/2007 6/29 JUDGMENT rendered by the Hon'ble Bombay High Court in Appeal Nos.10, 73 and 97 of 1891, whereby it has been pointed out that predecessor-in-title of the present appellants were owners of the suit property. In fact, by the aforesaid judgment of the Hon'ble Bombay High Court, Amir Begum became original owner of the land admeasuring 764.28 acres. Amir Begum had two sons namely Abdul Rehman and Abdul Kadar. Learned counsel for the appellant stated that Abdul Rehman, vide his will dated 6th March,1929 bequeathed his property to his wife Badrunnisa, another wife namely Ashrafunnisa and Farukh Jahan (widow of his deceased brother namely Abdul Kadar). Learned counsel for the appellant argued out at length that the property has been bequeathed from Badrunnisa to Shafakatali Saleri by will dated 30th December,1967. From Shafakatali Saleri vide gift deed dated 10th June,1989, transferred to his son Ahmed Saheb Saleri. Likewise, by Ashrafunnisa the property was given to Latifuddin vide will dated 9th June,1941 and from Latifuddin transferred to his son Nurulhasan Latifuddin Kazi vide gift deed dated 1st July,1956. Likewise, Farukh Jahan also transferred her property to four persons by gift deed dated 19th August,1960. Learned counsel for the appellant submitted that thereafter, Ahmed Saheb Saleri as well as four legal heirs of Farukh Jahan Begum, instituted Partition Suit AO/375/2007 7/29 JUDGMENT No.336 of 2001 against Nurulhasan Latifuddin, wherein, a panchnama was also drawn by Court Commissioner and report was given by the Court Commissioner on 17th January,2004, wherein possession of Nurulhasan has been reflected. Ultimately the suit was decreed. As per consent terms, the plaintiffs of Partition Suit No.336 of 2001 i.e. Ahmed Saheb and four legal heirs of Farukh Jahan received consideration from Nurulhasan and rights were waived in favour of Nurulhasan, who became owner of the whole property. Thus, what was given by the order dated 29th September,1896 passed by Hon'ble Bombay High Court to Amir Begum and from Amir Begum to his sons namely Abdul Rehman and Abdul Kadar; and from Abdul Rehman to his wife Badrunnisa, another wife namely Ashrafunnisa and Farukh Jahan (wife of his brother namely Abdul Kadar), is now again vested in one man viz. Nurulhasan. It is submitted by the learned counsel for the appellant that the appellant has purchased the suit property from legal heirs of Nurulhusan (who was owner as well as in possession of the suit property) by registered sale deed dated 19th July,2006. Thus, the appellant (the plaintiff in Special Civil Suit No.388 of 2006 and defendant in Special Civil Suit No.143 of 2007) relied upon the order dated 29th September,1896 passed by the Hon'ble Bombay High Court and also upon the consent decree dated 9th AO/375/2007 8/29 JUDGMENT March,2004 passed by the Trial Court in Suit No.336 of 2001 and also upon the report of the Court Commissioner and panchnama drawn by the Court Commissioner dated 17th January,2004, which narrates possession of the suit property with Nurulhasan. (c) Likewise, there is also a panchnama drawn on 26th March,2007, which reflects possession of the present appellant. (d) It appears that on 13th March,2007, a notice was issued by Circle Inspector, (N.A.), Athwa Division, Surat to the present appellant, which reflects that the present appellant is doing some construction on the suit property and concerned Officer of Government asked the present appellant as to any permission was obtained and as to any plans have been approved. This notice issued by Government Department reflects possession of appellant (plaintiff of Special Civil Suit No.388 of 2006, who is also a defendant of Special Civil Suit No.143 of 2007). (e) It appears that there is also a measurement of the property, by the District Inspector, Land Records, a Government Authority and map has also been provided on 3rd August,2007, which also reflects, prima facie, AO/375/2007 9/29 JUDGMENT possession of the property with the plaintiff of Special Civil Suit No.388 of 2006 and original defendant of Special Civil Suit No.143 of 2007, who is the present appellant. (f) Registered lease deed dated 14th September,1953 executed by Badrunnisa, Latifuddin and Farukh Jahan in favour of one Shri Bapurao Bajirao Savant, who ultimately surrendered lease land to owners. 6. Learned counsel for the respondent (i.e. original plaintiff of Special Civil Suit No.143 of 2007 and original defendant in Special Civil Suit No.388 of 2006), is mainly relying upon several sale deeds in their favour from the year 1985 to 1995. They are also relying upon consent decree passed in Suit No.1262 of 1969 (new number Special Suit No.25 of 1972), whereby its predecessor-in-title became owner of the property and they are also relying upon the mutation entries recorded in the revenue records in their favour and especially on long drawn litigation because of mutation entry no.594, which has been narrated by learned counsel for the plaintiff of Special Civil Suit No.143 of 2007. It is also stated by learned counsel for the respondent that the suit filed by the present appellant is time barred. AO/375/2007 10/29 JUDGMENT There is no prima facie case in favour of the present appellant (original plaintiff in Special Civil Suit No.388 of 2006), whereas, respondent (plaintiff in Special Civil Suit No.143 of 2007) has got strong prima facie case in their favour. They are also claiming possession upon the suit property. Learned counsel for the respondent further submitted that there was a constructive notice to the present appellant and, therefore, the appellant is not a bona fide purchaser of the suit property. It is contended that the reliefs, which the present appellant ought to have prayed for in Special Civil Suit No.388 of 2006, have not been prayed and only consequential reliefs are prayed and, therefore, the order passed by the Trial Court below Exh-5 in Special Civil Suit No.143 of 2007 in favour of the respondent and the order below Exh-5 passed in Special Civil Suit No.388 of 2006 dismissing the stay application, are true and correct and may not be interfered with by this Court. Learned counsel for the respondent has cited various authorities and has submitted, in detail, issue of limitation, prima facie case, constructive notice, relief prayed and effect thereof. It is contended by learned counsel Mr.Y.N.Ravani AO/375/2007 11/29 JUDGMENT on behalf of the newly joined parties, who are applicants in Civil Application No.4647 of 2007 in Appeal from Order No.86 of 2007 (arising out of order passed below Exh-5 in Special Civil Suit No.388 of 2006 – filed by the present appellant) that the decree passed by the Trial Court in Civil Suit No.336 of 2001 should not be given effect to and has relied upon decision rendered by this Court reported in 1983(2) GLR 961 and has prayed for maintaining status quo with regard to the possession and title of the suit property and has relied upon a decision rendered by Hon'ble Supreme Court reported in AIR 2005 SC 104. R E A S O N S : 7. Having heard the learned counsel for both the sides and looking to the facts and circumstances of the case, the orders passed in Exh-5 applications in Special Civil Suit No.388 of 2006 as well as in Special Civil Suit No.143 of 2007, deserve to be quashed and set aside, for the following facts and reasons: 8. It, prima facie, appears from the facts of the case that the present appellant, who is plaintiff in Special Civil Suit No.388 of 2006, is having strong prima facie case in comparison to the main respondent AO/375/2007 12/29 JUDGMENT [Kalpataru Land (Surat) Pvt. Ltd.], who is also plaintiff in Special Civil Suit No.143 of 2007, mainly for the reason that prima facie, looking to the facts of the case, there is a registered sale deed dated 19th July,2006 in favour of the present appellant. 9. Looking to the order dated 29th September,1896 passed by the Hon'ble Bombay High Court in Appeal Nos.10, 73 and 97 of 1891, it appears that Amir Begum was the owner of the land admeasuring 764.28 acres, out of Survey No.400, which is totally admeasuring about 3287 acres. This Survey No.400 is divided into three survey numbers, as stated hereinabove and we are concerned with land bearing Survey No.506 admeasuring about 2814.18 acres. Out of which, land admeasuring 764.28 acres was belonging to Amir Begum who had two sons namely Abdul Rehman and Abdul Kadar. It appears that Abdul Rehman, vide his will dated 6th March,1929 bequeathed his property to his wife Badrunnisa, another wife namely Ashrafunnisa and Farukh Jahan (widow of his deceased brother namely Abdul Kadar). Thereafter, as stated hereinabove, by wills and gift deeds, ultimately, the property had been given to Ahmed Saheb (ultimate legal heir of Badrunnisa), Nurulhasan (ultimate legal heir of Ashrunnisa) and four legal heirs of Farukh Jahan. Thereafter, there was a suit filed by AO/375/2007 13/29 JUDGMENT Ahmed Saheb as well as four legal heirs of Farukh Jahan against Nurulhasan. After receiving consideration from Nurulhasan, they waived their rights in favour of Nurulhasan. Thus, what was acquired by Amir Begum by the order passed by the Hon'ble Bombay High Court, which was divided into three branches, is once again, vested in one person namely Nurulhasan. From the legal heirs of Nurulhasan namely Kausharjahan Syed (wife of Nurulhasan), Jiyaulhasan Syed (son of Nurulhasan), Sahistabegam (daughter of Nurulhasan) and Fazlinabanu (daughter of Nurulhasan), the property has been purchased by the present appellant by registered sale deed dated 19th July,2006. Thus, prima facie, looking to the aforesaid facts along with various wills and gift deeds, property transferred from Abdul Rehman to his wife Badrunnisa, another wife namely Ashrafunnisa and Farukh Jahan (wife of his brother namely Abdul Kadar). Subsequently, by wills and gift deeds the property was transferred in favour of subsequent owners and also looking to the aforesaid decree passed in Suit No.336 of 2001, it prima facie, appears that predecessor-in-title is the owner of the suit property and the present appellant is purchaser of the suit property from them by registered sale deed dated 19th July,2006. Thus, there is a prima facie case in favour of the present appellant (original plaintiff of AO/375/2007 14/29 JUDGMENT Special Civil Suit No.388 of 2006 and defendant in Special Civil Suit No.143 of 2007). 10. It appears from the facts of the case that while deciding Suit No.336 of 2001, by the competent Trial Court, Court Commissioner was appointed, who gave report along with panchnama dated 17th January,2004, which reflects possession of Nurulhasan i.e. defendant in Suit No.336 of 2001, who is predecessor-in-title. 11. Another panchnama was also drawn by Government Authority dated 26th March,2007, which also reveals possession of appellant. 12. It also appears from the facts of the case that a notice dated 13th March,2007 was issued by Circle Inspector, (N.A.), Athwa Division, Surat, to the present appellant (plaintiff of Special Civil Suit No.388 of 2006), as to why appellant has put construction - Whether any permission has been obtained - this also reflects possession of the present appellant. 13. There is, on the record, District Inspector, Land Records, a Government Authority, provided a map on 3rd August,2007, which also reflects, prima facie, AO/375/2007 15/29 JUDGMENT possession of the present appellant. Learned counsel for the respondent has pointed out that aforesaid map provided on 3rd August,2007 drawn by District Inspector, Land Record, has been suspended subsequently, by the concerned authority. 14. It appears from the facts of the case that there is one more relevant document, which is a lease-deed dated 14 th September,1953 executed by Badrunnisa, Latifuddin, Farukh Jahan in favour of one Shri Bapurao Bajirao Savant. This is a registered lease deed. This document reflects the fact that the property was owned by Badrunnisa, Latifuddin (who is legal heir of Ashrunnisa by will dated 9th June,1941) and Farukh Jahan. These three persons have given the suit property on lease on 14th September,1953 to Shri Bapurao Bajirao Savant. As stated hereinabove, as per the order dated 29th September,1896, passed by the Hon'ble Bombay High Court, the property was given to Amir Begum, admeasuring 764.28 acres from Survey No.400 (which is now forming part of Survey No.506). From Amir Begum, the property had gone to Abdul Rehman and from Abdul Rehman, it was given to Badrunnisa, Ashrafunnisa and Farukh Jahan and from Ashrafunnisa given to Latifuddin. This is how, Badrunnisa, Latifuddin and Farukh Jahan became owners of the property. On 14th AO/375/2007 16/29 JUDGMENT September,1953, a registered lease deed was entered into in favour of Bapurao Bajirao Savant. Thereafter, Bapurao Bajirao Savant has surrendered the lease. Thus, property was again vested in Badrunnisa, Latifuddin and Farukh Jahan. Subsequently, Ahmed Saheb (legal heirs of Badrunnisa) and four legal heirs of Farukh Jahan, have instituted Suit No.336 of 2001 against Nurulhasan (who is ultimate legal heir in the branch of Asharunnisa) and ultimately, plaintiffs of this suit, upon receiving consideration from Nurulhasan, waived their rights in favour of defendant viz. Nurulhasan and suit was decreed in favour of Nurulhasan and thus, the property was given to Nurulhasan and from Nurulhasan, it had gone to legal heirs of Nurulhasan and from legal heirs of Nurulhasan, the property was purchased by registered sale deed by the present appellant. This establishes prima facie case in favour of the present appellant. 15. It appears from the facts of the case that Suit No.1262 of 1969 (new Special Suit No.25 of 1972), was instituted by the legal heirs of Bapurao Bajirao, in the year 1969. Lease was surrendered, much earlier in point of time, by Bapurao Bajirao Savant to Badrunnisa, Latifuddin and Farukh Jahan, whereas, suit was filed by the legal heirs of Bapurao Bajirao in the year 1969. In AO/375/2007 17/29 JUDGMENT this suit, Asharafali Amirali is joined as legal heir of Badrunnisa Begum, Mohammadali is joined as legal heir of Farukh Jahan and Latifuddin is joined as legal heir of Ashrafunnisa Begum, as defendants. It is stated by learned counsel for appellant that Latifuddin was not alive, as on date of filing of suit, despite this fact, he was joined as defendant in Civil Suit No.1262 of 1969 (New Suit No.25 of 1972). Four more defendants are joined, subsequently, who are purchasers of part of the property, vide order dated 6th February,1971 below Exh-39. It appears that thereafter, original three defendants were deleted and consent decree was passed in favour of four newly joined defendants in Civil Suit No.1262 of 1969 (new Special Suit No.25 of 1972). This consent decree was passed on 18th September,1972. Thus, four newly joined defendants in Civil Suit No.1262 of 1969 (new Special Suit No.25 of 1972), became owners of part of the property. Learned counsel for the respondent stated that the plaintiffs of Civil Suit No.1262 of 1969 (i.e. Dilipsinh Bapurao Savant, who is legal heir of Bapurao Bajirao Savant,) has handed over the tenancy right to Ashwinbhai and his brothers, rest of the parts of the property. Thus, for part of the property, four newly joined defendants in Civil Suit No.1262 of 1969, became owners. This is a bottle-neck. Who is plaintiff – What AO/375/2007 18/29 JUDGMENT locus standi – who are newly joined persons - who sold to them, the suit land because original three defendants were deleted and who is Ashwin & brothers is not clear at this stage. It requires evidence. These four defendants, who are subsequently joined as purchasers are the predecessor-in-title of the present respondent (original plaintiff of Special Civil Suit No.143 of 2007) sale deed in favour of these four defendants is not referred before this Court. Thereafter, mutation entry No.594 was mutated in the revenue record. Against this entry, there were Appeals, Revisions and Special Civil Applications were preferred before this Court, under the provisions of the Bombay Land Revenue Code. Learned counsel for the respondent submitted that there was also an inquiry under Section 37 of the Bombay Land Revenue Code, wherein, it is held that Government is not the owner of the property. At the end of these litigations, mutation entry no.594 remained intact and as it was. Kalpataru Land (Surat) Pvt.Ltd. is purchaser of the property from the owners of the suit property, by registered sale deed from the year 1985 to 1995 and, therefore, it is submitted by respondent that the order passed by the Trial Court is true and correct and there is a prima facie case in favour of the Kalpataru Land (Surat) Pvt.Ltd.. This argument of the respondent, is not accepted by this AO/375/2007 19/29 JUDGMENT Court, mainly for the reason that prima facie, it appears to this Court that by registered lease deed, the suit property was given on lease to Bapurao Bajirao by Badrunnisa, Latifuddin and Farukh Jahan in the year 1953. Bapurao Bajirao had surrendered the lease and, again, Badrunnisa, Latifuddin and Farukh Jahan came in possession of the property. A notice dated 14 th March,1955 of termination of lease was given by Shri Vinayakray Pota, advocate as it was not possible to cultivate the suit land (It is stated by the counsels for the parties that the suit land is “Khar land” not cultivable). Thereafter, it appears that from Badrunnisa, the property had gone to Shafatali Saleri and from Shafatali Saleri to Ahmed Saheb. Likewise, from Ashrunnisa to Nurulhasan and from Farukh Jahan to four persons, by gift deeds. Here is a bottle neck to the effect that Whether Ahmed Saheb (ultimate legal heir of Badrunnisa), Nurulhasan (ultimate legal heir of Ashrafunnisa) and four persons to whom the gift was given by Farukh Jahan, are the owners of the property or Ashrafali Amirali (who is claiming as legal heir of Badrunnisa), is also an owner of the property and who was joined as defendant in Civil Suit No.1262 of 1969. Thus, Ashrafali (legal heir of Badrunnisa), Mohmmmadali (legal heir of Farukh Jahan) and Latifuddin (legal heir of Ashrafunnisa) were first three AO/375/2007 20/29 JUDGMENT