AO/10620/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 106 of 2008 With CIVIL APPLICATION No. 3891 of 2008 In APPEAL FROM ORDER No. 106 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 ? ========================================= = PAMIBEN WD/O PITHABHAI KARSANBHAI VARU & 1 - Appellant(s) Versus MAGANBHAI CHELABHAI RABARI & 10 - Respondent(s) ========================================= = Appearance : MR AMITTHAKKAR for Appellant(s):1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7-2. MR HARIT N SOMPURA for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 11. ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/12/2008 AO/10620/2008 2/6 JUDGMENT ORAL JUDGMENT 1. ADMIT. Shri Harit Sompura, learned advocate waives service of notice for respondent no. 1-original plaintiff, who is the main contesting party and in whose favour order below Exh. 5 has been passed. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the present Appeal from Order is taken up for final hearing today. 3. The present Appeal from Order has been preferred by the appellants-original defendants nos. 10/A to 10/G and 12 challenging the impugned order passed by the learned 3rd Additional Senior Civil Judge, Surat dated 29/12/2007 below Exh. 5 in Special Civil Suit No. 111/2005 in so far as granting interim injunction and/or directing to maintain status quo with respect to land bearing Revenue Survey Nos. 514 and 499/2. 4. Respondent no. 1-original plaintiff had instituted Special Civil Suit No. 111/2005 in the Court of learned Civil Judge (Senior Division) Surat for specific performance of the agreement to sell/satakhat dated 03/03/1984. It was the contention on behalf of respondent no. 1-original plaintiff that by the aforesaid agreement to sell/satakhat dated 03/03/1984, the original land owner-Ramubhai had agreed to sell the land bearing Revenue Survey Nos. 514, 646, 647, 921, 499/2, 1000/2, 59 and 53+54 for a sale consideration of Rs. 2,30,000/- It was also the case on behalf of respondent no. 1-original plaintiff that vide kabja receipt dated 14/09/1985, he was put AO/10620/2008 3/6 JUDGMENT in possession. In the said suit, respondent no. 1-original plaintiff submitted an application, Exh. 5 for interim injunction. The learned trial Court in the application, Exh. 5 has observed that original defendants nos. 1 to 8 have sold Revenue Survey No. 514 to defendant no. 9 on 08/06/2004 and original defendant no. 9 has transferred the said survey number by registered sale deed to defendant no. 10 on 12/10/2004 and Revenue Survey No. 499/2 is transferred by registered sale deed to original defendant no. 11 on 01/12/2003 and then it is transferred by registered sale deed on 10/07/2004 to defendant no. 12 and the learned trial Court has further observed that Ramubhai Somabhai has accepted the total amount of sale consideration by virtue of kabja receipt, inspite of the above fact, the learned trial Court has observed that respondent no. 1-original plaintiff is in possession of Revenue Survey Nos. 514/1 and 499/2 and the learned trial Court granted injunction directing the parties to maintain status quo with respect to the lands. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court below Exh. 5 dated 29/12/2007 in Special Civil Suit No. 111/2005 directing the appellants-original defendants nos. 10/A to 10/G and 12 to maintain status quo with respect to the land bearing Revenue Survey Nos. 514 and 499/2, the appellants have preferred the present Appeal from Order. 5. Shri R.S. Sanjanwala, learned advocate appearing on behalf of the appellants-original defendants nos. 10/A to 10/G and 12 has vehemently submitted that in view of the above, the learned trial Court ought not to have granted injunction and ought not to have directed the appellants-original defendants nos. 10/A to 10/G and 12 to maintain status quo AO/10620/2008 4/6 JUDGMENT with respect to the land bearing Revenue Survey Nos. 514 and 499/2. It is submitted that as such the appellants-original defendants nos. 10/A to 10/G and 12 are bonafide purchasers of the aforesaid land in question. It is also further submitted that even otherwise considering the fact that agreement to sell/satakhat was of the year 1984 and the suit has been filed in the year 2005, after a period of almost 21 years, the learned trial Court was not justified in issuing injunction and, therefore, it is requested to allow the present Appeal from Order. 6. The Appeal from Order is opposed by Shir Harit Sompura, learned advocate appearing on behalf respondent no.1-original plaintiff. It is submitted that respondent no. 1-original plaintiff has paid full consideration of Rs. 2,30,000/- with respect to the land and the same is reflected in the agreement to sell/satakhat dated 03/03/1984 and, therefore, the learned trial Court has rightly issued the injunction with respect to the lands in question. It is further submitted that as and when respondent no. 1-original plaintiff came to know about the transaction between original defendants nos. 8 to 12, thereafter the present suit has been filed. Under the circumstances, it is requested to dismiss the present Appeal from Order. 7. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that respondent no. 1-original plaintiff had instituted suit for specific performance of the agreement to sell/satakhat dated 03/03/1984 after a period of 21 years. It is true that respondent no.1-original plaintiff has prayed for declaration and to quash and set aside the sale deed in favour of original AO/10620/2008 5/6 JUDGMENT defendants nos. 8 to 12 but the fact remains that agreement to sell/satakhat of which specific performance is sought is of 03/03/1984 and the suit has been filed in the year 2005 i.e. after a period of 21 years. it is required to be noted that respondent no.1-original plaintiff has relied upon the kabja receipt dated 14/09/1985 and admittedly in the kabja receipt there is reference to payment of sale consideration with respect to other lands but there is no reference with respect to land bearing Revenue Survey Nos. 514 and 499/2. Thus, even on the basis of the documents, which are produced by respondent no. 1-original plaintiff i.e. the kabja receipt and even as observed by the learned trial Court respondent no. 1- original plaintiff was never in possession of the land bearing Revenue Survey Nos. 499/2 and 514. 8. It has also come on record that original defendants nos. 1 to 8 had sold Revenue Survey No. 514 to defendant no. 9 on 18/06/2004 and, thereafter, defendant no. 9 has transferred the said land by registered sale deed to defendant no. 10 on 12/10/2004. Similarly, land bearing Revenue Survey No. 499/2 is transferred by registered sale deed in favour of defendant no.11 on 01/12/2003 and then it is transferred by registered sale deed of 10/07/2004 to defendant no. 12. It is the case on behalf of the appellants- original defendants nos. 10/A to 10/G and 12 that they have purchased the said land by giving public notice. 9. Under the circumstances, in view of the above, it appears that the learned trial Court has committed a grave error in granting injunction directing the appellants- original defendants nos. 10/A to 10/G and 12 to maintain status quo AO/10620/2008 6/6 JUDGMENT atleast with respect to land bearing Revenue Survey Nos. 494/2 an 514. In view of the above, the aforesaid deserves to be quashed and set aside. 10. For the reasons stated hereinabove, the Appeal from Order succeeds. The impugned order passed by the learned 3rd Additional Senior Civil Judge, Surat dated 29/12/2007 below Exh. 5 in Special Civil Suit No. 111/2005 with respect to land bearing Revenue Survey Nos. 499/2 and 514 situated at village Dumas, Surat, is hereby quashed and set aside. 11. It goes without saying that the learned trial Court will decide and dispose of the suit on its own merits on the basis of the materials on record and the evidence led, without, in any way, being influenced by any of the observations made in the present order as the same are to be treated as tentative while deciding the interim injunction application, Exh. 5 only. 12. With this, the present Appeal from Order is allowed. No order to costs. CIVIL APPLICATION No. 3891/2008 In view of the order passed in Appeal from Order, no order in Civil Application. (M.R. SHAH, J.) siji