AO/248/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 248 of 2008 With CIVIL APPLICATION No. 8448 of 2008 In APPEAL FROM ORDER No. 248 of 2008 With APPEAL FROM ORDER No. 249 of 2008 With CIVIL APPLICATION No. 8467 of 2008 In APPEAL FROM ORDER No. 249 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 ? ========================================================= BHARTIBEN ATULKUMAR PATEL - Appellant(s) Versus KALPANABEN JITENDRA PATEL D/O DECD. CHHOTALAL D PATEL & 3 - Respondent(s) ========================================================= Appearance : MR PY DIVYESHVAR for Appellant(s) : 1, Mr. D. F. Amin for MR DHAVAL M BAROT for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH AO/248/2008 2/13 JUDGMENT Date : 17/09/2008 CAV JUDGMENT As both these Appeal from Orders arise out of the same order passed by the learned trial Court, they are being disposed of by this common order. 2. Appeal from Order No.248 of 2008 is filed by the appellant-original defendant No.1 and Appeal from Order No.249 of 2008 is filed by the original defendant Nos.2 and 3, challenging the order passed by the learned 12th Additional Senior Civil Judge, Vadodara dated 13th May, 2008 below Exh.5 in Special Civil Suit No.256 of 2007 alongwith the application Exh.5 directing the defendants to maintain status-quo with respect to Plot No.24 of Urmi Society, Productivity Road, Alkapuri, Vadodara. 3. Respondent No.1-Kalpanaben Jitendra Patel in each of the Appeal from Order and original plaintiff had instituted Special Civil Suit No.256 of 2007 in the Court of learned Civil Judge, (SD), Vadodara for partition of the suit property, contending inter-alia that the plaintiff has been living in United State since quite longtime and original defendant No.1 is the sister of the plaintiff and she is also the AO/248/2008 3/13 JUDGMENT citizen of United States. However, nowadays most of the time she is living in India at Ahmedabad. Defendant No.2 is a business entity named as Vaibhav Corporation and they are engaged in building construction activity at Vadodara. As per the plaintiff, she and defendant No.1(appellant of Appeal from Order No.248 of 2008) are the daughters of deceased – Chhotabhai Dahyabhai Patel, who was permanently residing at Ahmedabad and their father had immovable property at Ahmedabad and Vadodara. One of such properties is Plot No.24 of Urmi Society, Productivity Road, Alkapuri, Vadodara. The said plot is ad-measuring 11,544 square feet. Their father- Chhotabhai expired in the year 1966 at Ahmedabad and he survived by his wife Kantaben and two daughters i.e. original plaintiff and defendant No.1. He had no other heirs at the time of death of deceased- Chhotabhai. In the year 1966 original plaintiff was the minor and therefore it was submitted that all the properties of their father-Chhotabhai were the joint family property and each had equal share. It is further averred in the plaint that in spite of that and without any partition amongst the heirs of deceased-Chootabhai, the original defendant No.1 sold the property bearing Plot No.24 of Urmi Society, AO/248/2008 4/13 JUDGMENT Productivity Road, Alkapuri, Vadodara in favour of Vaibhav Corporation. It is submitted that prior thereto, the original plaintiff had served a notice upon the defendant No.1 and even the public notice was also given and in spite of that original defendant No.1 sold the property in favour of defendant Nos.2 and 3 and in spite of public notice defendant Nos.2 and 3 purchased the same. Therefore, the aforesaid suit came to be filed and in the said suit, the original plaintiff submitted the application at Exh.5 for interim injunction restraining the defendant from making any change of any nature and also restraining them from digging pits, making any construction or making any change in the nature and in the position of and transferring plot No.24 of Urmi Society, Productivity Road, Alkapuri, Vadodara and further restraining them from disturbing rights of co-owners of said plot and disturbing plaintiff's legal and joint possession as co-owner in any manner till final disposal of the suit. Initially, the learned trial Court passed the ex-parte ad-interim injunction on 25/05/2007 restraining the defendants from making construction work in the suit property and also further restraining them from transferring the suit property AO/248/2008 5/13 JUDGMENT to any third party and the defendants were directed to maintain status-quo position in respect of the suit property. 4. Application Exh.5 was opposed by original defendant No.1 by submitting reply at Exh.45. It was submitted on behalf of the defendant No.1 that the name of the defendant No.1 was entered into in the record of the society vide Resolution dated 02/03/1975 and she has got the absolute ownership right which was given by their father. It was further submitted that the said resolution was in the knowledge of the plaintiff as well as original defendant No.4 (mother) and the said resolution is not challenged. It was further submitted that defendant No.1 had sold / transferred her share in the said plot in favour of defendants Nos.2 and 3 by registered sale-deed dated 14/05/2007. 5. Application Exh.5 was also opposed by the original defendant Nos.2 and 3 while submitting the reply at Exh.49 and further submitting that they have purchased the property in question by registered sale-deed for a sale consideration of Rs.2.30 Crores and even the same was purchased after giving public AO/248/2008 6/13 JUDGMENT advertisement in local newspaper on 15/10/2006 and after obtaining title clearance certificate. Therefore, it was requested to dismiss the application Exh.5 and vacate the ex-parte interim injunction. 6. The learned trial Court after considering the submissions made on behalf of respective parties and prima-facie considering the the fact that the original plaintiff had a share in the property in question and the original defendant No.1 had no authority to sale the share of the plaintiff as well as original defendant No.4, granted application Exh.5 by directing the defendants to maintain status-quo. Being aggrieved and dissatisfied with the order passed by the learned trial Court dated 13/05/2008 below Exh.5 in Special Civil Suit No.256 of 2007, the original defendant No.1 and defendant Nos.2 and 3 have preferred the present Appeal from Orders. 7. Learned Advocates appearing on behalf of respective appellants have vehemently submitted that the learned trial Court has materially erred in holding that the property in question is a joint family property and the original plaintiff and AO/248/2008 7/13 JUDGMENT defendant No.4 have also share and they are the co- owners. It is also further submitted that the learned trial Court has materially erred in not appreciating the fact that the name of the original defendant No.1 was entered into register of the society in the year 1975 and since then the said property was in exclusive possession and in ownership of defendant No.1 and therefore the plaintiff as well as defendant No.4 had no share in the property in question. It is also further submitted that by learned Senior Advocate appearing on behalf of respective appellants that the learned trial court has not property appreciated the fact that suit for partition is filed only qua Plot No.24 and not with respect to any other properties. It is submitted by Mr.Nanavati, learned Senior Advocate appearing on behalf original defendant Nos.2 and 3 that they have purchased the property in question by registered sale-deed on payment of full sale consideration after obtaining title clearance certificate and after giving public notice and they are the bona-fide purchasers and therefore it is requested to allow the appeal from order and vacate the order of status-quo. 8. On the other hand, both Appeal from Orders AO/248/2008 8/13 JUDGMENT are opposed by Shri D F Amin and Shri Dhaval Barot, learned Advocates appearing on behalf of original plaintiff and it is submitted that the property in question was purchased by deceased-Chhotabhai, the father of the plaintiff and defendant No.1 and the name of defendant No.1 was got entered into the register of the society by the defendant No.1, affecting the rights of the plaintiff as well as defendant No.4. It is submitted that as rightly observed by the learned trial Court that prima-facie the plaintiff and the defendant No.4 have also share in the property in question and therefore the defendant No.1 had no right or authority to sale and / or transfer their share. Therefore, the learned trial Court has rightly granted the order of status-quo, otherwise there will be multiplicity of proceedings and once the defendant Nos.2 and 3 are permitted to put up the construction and to change the nature of the property in that case, if the suit is decreed, it will not be possible to get the decree executed and third party rights will be created and therefore the learned trial Court has rightly granted the order of status-quo. By making above submissions, it is requested to dismiss both the appeal from orders. AO/248/2008 9/13 JUDGMENT 9. Heard the learned Advocates appearing on behalf of respective parties. It appears that the suit is filed by the plaintiff for partition. It also appears that the disputed property in question viz., Plot No.24 of Urmi Society, Productivity Road, Alkapuri, Vadodara was purchased by the father of the original plaintiff and defendant No.1 and husband of defendant No.4-deceased-Chhotabhai. The said deceased-Chhotabhai expired in the year 1966. Neither there is a will in favour of any party nor there is any evidence that there was a partition amongst the heirs of deceased-Chhotabhai. Hence, the plaintiff and the defendant No.4 had also share in the disputed property in question. All the three i.e. plaintiff, defendant Nos.1 and 4 are the co- sharers and therefore unless and until the property is partitioned, one of the sharer cannot sale the property in question. Therefore, the original defendant No.1 had no right and / or authority to sale the entire property in question. It is also required to be noted that initially the suit was filed for partition, however, subsequently plaint has been amended and the declaration is sought that sale- deed executed in favour of defendant Nos.2 and 3 is AO/248/2008 10/13 JUDGMENT not binding upon the plaintiff and original defendant No.4. It is also required to be noted that the original defendant No.1 – herself had filed suit No.1737 of 2007 against the plaintiff and defendant No.4 claiming that she had 1/3 share in plot No.A/2 Adashya Appartment. Therefore, with respect to some other property, the very defendant had claimed that she had 1/3 share share and so far as plot No.24 is concerned, she claims to be the absolute owner which cannot be accepted. Therefore, the learned trial Court has rightly held that defendant No.1 could not have sold the entire property defeating rights of the plaintiff as well as defendant No.4. 10. Now, so far as submission made on behalf of defendant Nos.2 and 3 that they are bona-fide purchasers of the property in question on payment of sale consideration, it is required to be noted that the power of attorney holder of the plaintiff served a legal notice upon the original defendant No.1, Chairman / Secretary of Urmi Society, Prakashbhai Khatri of Vaibhav Corporation-original defendant Nos.2 and 3 and Sub-Registrar, Vadodara, submitting that if any transaction is done with the original defendant No.1 with respect to disputed property AO/248/2008 11/13 JUDGMENT and / or any agreement and / or writing with respect to the property in question with original defendant No.1 defeating the rights of the plaintiff would be null and void and not binding upon the plaintiff. The said legal notice is dated 09/04/2007 and in spite of that the original defendant Nos.2 and 3 have purchased the property in question by registered sale-deed dated 25/05/2007 only from original defendant No.1. Thus, when in spite of the aforesaid notice dated 09/04/2007, defendant Nos.2 and 3 have purchased the property in question only from defendant No.1 with open eyes, they cannot be said to be the bona-fide purchasers. 11. Now, so far as submission made on behalf of defendants No.2 and 3 that they have given the public notice with respect to title clearance on 15/10/2006, it is to be noted that even thereafter and prior to the execution of the sale-deed dated 02/05/2007, the power of attorney holder of the plaintiff had served a notice on 09/04/2007 upon the original defendant No.1 as well as one Prakashbhai Khatri of Vaibhav Corporation – defendant No.3 and therefore as rightly observed by the learned trial Court, merely because the plaintiff had not submitted the objection AO/248/2008 12/13 JUDGMENT pursuant to the public notice dated 15/102/006, the rights of the plaintiff would not be affected in view of the subsequent notice dated 09/04/2007. 12. Considering the above, the learned trial Court has held that there is a prima-facie case and the balance of convenience is in favour of plaintiff and if the property in question is permitted to be transferred and / or defendants are permitted to put up construction in that case the third party rights will be created and the nature of the property will be changed and therefore the learned trial Court has held that if the injunction is not granted then the plaintiff would suffer irreparable loss. 13. Considering the above when the learned trial Court has granted application Exh.5, directing the defendants to maintain status-quo, it cannot be said that the learned trial Court has committed any error. In the facts and circumstances of the case, when the property in question is of the joint ownership of the three i.e. plaintiff, defendant Nos.1 and 4, all have equal share in the property in question and, in spite of notice when the defendant Nos.2 and 3 have purchased the property from original defendant No.1 AO/248/2008 13/13 JUDGMENT without there being any partition and interim injunction has been granted, the same is not required to be interfered with by this Court. During the pendency of the suit, the defendant Nos.2 and 3 cannot be permitted to put up the construction and change the nature of the suit property. 14. For the reasons stated herein above, both the Appeal from Orders fail and they are required to be dismissed and are accordingly dismissed. 15. In view of the dismissal of Appeal from Order, no order in Civil Applications. 16. While concluding the order, it is required to be observed that looking to the dispute between the two sisters, this Court tried best to resolve the dispute amicably but looking to the conduct and attitude of the husband of defendant No.1, the compromise could not be arrived at. (M.R.SHAH, J.) sompura