cas1104-10.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1104 OF 2010 IN SECOND APPEAL NO. 432 OF 2005 Siraj Bismilla Tamboli ... Applicant/Appellant V/s. Hakinbhai Chand Shaikh ... Respondent. --- Mr. Anilkumar Patil for the Applicant/Appellant. Mr. R.M. Hardas i/by P.N. Joshi for Respondent Nos. 1 to 3(d). Mr. Kishor Patil for the Respondent Nos. 4 and 5. Mr. Dighe h/f. Mr.S.K.Shinde for the Respondent Nos. 6,7 & 8. Mr.V.S. Mhaispurkar, AGP for the Respondent No.9. --- CORAM:- GIRISH GODBOLE, J. DATED :- 19th SEPTEMBER, 2011. P.C. : 1. Heard Mr. Anilkumar Patil for the Applicant, original Plaintiff and Respondent No.1 in the Second Appeal, Mr. Hardas for the Respondent Nos. 1 to 3d, being original Appellants in the Second Appeal and original Defendants and Mr. Kishor Patil for the Respondent Nos. 4 and 5. 2 This Civil Application is filed for taking action against the cas1104-10.sxw 2 Respondents/ Opponents under Order 39 Rule 2A of the Code of Civil Procedure, 1908 read with Article 215 of the Constitution of India for committing breach of the Order dated 11.09.2009 passed in Civil Application No. 544 of 2009. The said order dated 11th September, 2009 reads thus : “1 The civil application has been taken out by the appellant to add opponent Nos. 4 and 5 as party respondents to the appeal. This is because according to the applicant, an agreement of sale was entered into between the opponent Nos. 4 and 5 and the respondents in the appeal during the pendency of the proceedings. A further prayer for a direction against the respondents including opponent Nos. 4 and 5 is sought restraining them from creating any third party rights in respect of the suit property. 2 For the reasons stated in the civil application, it is allowed in terms of prayer clause (a). As regards prayer clause (b), status quo as of today shall be maintained by the parties in respect of the suit property i.e. 1 hectare and 671 ares of gat no. 336 and 3336(2) of Mouje Chougaon, Tal. Baglan, Dist. Nashik. 3 Civil application is disposed of accordingly.” 3 A prayer for restoration of possession is also made vide prayer (c). The Applicant is original Plaintiff in R.C.S. No. 560/1991 which was cas1104-10.sxw 3 partly decreed by the learned Civil Judge, Jr. Division, Satana on 31st March, 1993 and the declaration was granted in the following terms : ORDER The suit is partly decreed. It is declared that the suit property Gat No. 336 is owned by the Plaintiff and other heirs of Rahim Sultan. It is also declared that it is in the possession of the Plaintiff and the other heirs. It is further declared that the sale deed executed by the Defendants No.1 and 2 in favour of the Defendant No.3 on 12.12.1981 in null and void in relation to the area more 46 R. The Defendant No.3 or anybody on his behalf hereby restrained permanently to interfere with the possession of the plaintiff and the other heirs of Rahim Sultan in relation to Gat No. 336 except 46 R land. The claim of the Plaintiff that the sale deed is void in relation to 46 R land in view of the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 is dismissed. The claim of the Plaintiff that the property is joint cas1104-10.sxw 4 family property is dismissed.”. 4 The Defendants filed Civil Appeal No. 63 /1993 which has been dismissed by the learned First Ad-hoc District Sessions Judge, Malegaon by the impugned Judgment and Order dated 22.04.2004. Thereafter, the Second Appeal has been filed and the Second Appeal is admitted by order dated 6th September, 2005. By order dated 6th September, 2005 passed in C.A.No, 751/2005, the Application was allowed in terms of prayer clause (a) and thus the Decree passed by the District Court in which the Decree passed by the Trial Court had merged was stayed. These facts are not in dispute. 5 It is the case of the Applicant that taking dis-advantage of the aforesaid interim relief, the Respondent Nos.3(a) to 3(d) executed an agreement of Sale dated 18.02.2009 in favour of the Respondent No.5. It is their further case that the Respondent No.3(a) to 3(d) sold the southern portion, admeasuring 80 Ares from Gat No.336/2 to Respondent No.4- Farooq Shaikh. Similar documents are also executed in favour of the Respondent No. At this stage, the Applicant filed C.A.No.544/2009 and thereafter the aforesaid order dated 11th September, 2009 had been passed. cas1104-10.sxw 5 The grievance of the Applicant is that taking dis-advantage of the said Sale Deed executed during the pendency of the Appeals, the Respondent Nos. 4 and 5 have dispossessed the Applicant with the help of the Police etc. A grievance is also made about the entry of their names in the revenue records. Affidavit-In-Reply has been filed by the Respondents. 6 Mr. Anilkukar Patil submitted that the Applicant had succeeded in the Trial Court and the District Court and the original Appellants having obtained an interim order in this Court should not have alienated the suit properties without permission of this Court. It is also contended that the Trial Court has clearly recorded a finding that the Applicant was in joint possession of the suit land and he has been dis-possessed on the basis of the said Sale Deeds. It was also pointed out that despite the order of status-quo, mutation entries have been made. 7 On the other hand, Mr. Hardas, Advocate and Mr. Kishor Patil, Advocate opposed the Application. My attention was invited to the findings recorded by the Appellate Court which according to them, clearly held that the Defendant No. 3 was in exclusive possession of the suit property. It was also pointed out that both the Sale Deeds have been cas1104-10.sxw 6 executed much prior to the passing of the order of status -quo of the learned single Judge. 8 I have considered the rival contentions. Though the Trial Court had recorded a finding regarding joint possession of the property it is clear from the findings recorded by the Appellate Court that the Defendant No.3 was held to be in possession of the entire land. This fact is clear from the following observations in paragraph 10 of the Judgment of the District Court : “Though he may be in possession of total land prior to the execution of the sale deed, but the after the death of Sh. Chand the respondents are entitled for their share and, therefore he was liable to restore remaining portion of the land in favour of the respondents. Thus answering point No.3 to 6 accordingly, I do not find any reason to interfere with the order passed by the learned Lower Court, declaring the suit partially.” 9 The original Appellants in the Second Appeal, after having obtained a blanket stay of the said Judgment of the Appellate Court in which the Decree of the Trial Court had merged were not at all justified in executing any document in respect of the property involved in the suit without cas1104-10.sxw 7 leave of the Court. However, question which requires to be decided is whether the Respondents have committed a breach of the status-quo order on the basis of which the Civil Application has been filed. The Applicant has filed RCS No. 68/2009 in the Court of the Learned Civil Judge, Jr. Dvn., Satana in which interim order had been prayed for. That Application was rejected by the learned C.J. Jr. Division, Satana by order dated 30.12.2009. The Civil Misc. Appeal No. 5 of 2010 was filed by the Applicants which has been disposed of by the learned District Judge, Malegaon on 3.5.2010 on the ground that the proceedings are subjudice in this Court. The prayers in this Application will have to be considered in the context of the aforesaid controversy. 10 The Sale Deeds had been executed prior to 11th September, 2009 which is clear from the copies of the Sale Deed dated 16.06.2009 which are placed on record. Prima facie such Sale Deeds are clearly hit by the provisions of Section 52 of the T.P. Act, 1882. The Vendors namely, Respondent Nos. 3(a) to 3(d) could not have transferred any higher right than they themselves had in favour of the Respondent Nos. 4 and 5. While granting relief in terms of prayer clause (a) of C.A. No. 751/2005 on 6th September, 2005 what was obviously stayed was execution of the Judgment and Decree of the Trial court and the Appellate Court and there cas1104-10.sxw 8 is nothing to indicate that there was any stay of the findings recorded by the Courts below. The fact, however, remains that there was no interim order preventing the Appellant in the Second Appeal from executing the Sale Deeds which are obviously hit by the doctrine of lis pendence. The findings so far as the possession is concerned are not stayed and presently finding of possession stands in favour of the original Defendant No.3 whose heirs are Appellant No.3(a) to 3(d) in the Second Appeal and Respondent Nos. 3(a) to 3(d) in this Civil Application. By order dated 11th September, 2009, C.A. No.544/2009 has been allowed in terms prayer clause (a) which indicates that the Respondent Nos. 4 and 5 herein above are added as party Respondents in the Second Appeal though the prayer wrongly mentions that they should be added as Respondent Nos.4 and 5 in the Second Appeal. They would obviously be added as Respondent Nos. 2 and 3 in the Second Appeal. Considering the finding regarding possession recorded by the District Court it is not possible to hold that the Applicant has been dis-possessed by the Respondent Nos. 4 and 5 on the basis of the Sale Deeds executed in their favour. At the same time one cannot lose sight of the fact that the Respondent Nos. 4 and 5 herein are complete strangers to the family and no right higher than the right which could not have been claimed by the original Appellant Nos. 3(a) to 3(d) in the suit cas1104-10.sxw 9 land can be claimed by them. 11 For holding a party guilty of contempt or breach of injunction, an absolute degree of proof beyond any reasonable doubt is required. In view of this, at this stage no relief can be granted in favour of the Applicant. However, till appropriate proceedings are adopted, it is necessary to protect the suit property from further alienations. The Respondent Nos. 4 and 5 have filed an Affidavit, stating that they will not further deal with property purchased by them during the penency of the Second Appeal. 12 Hence, I pass the following order :- a) The prayer for taking action against the Respondents under the Order 39 Rule 2(a) of the Code of Civil Procedure, 1908 and Article 215 of the Constitution of India is rejected for the reasons stated above. b) The prayer for restoration of possession in favour of the Applicant is also rejected for the reasons stated above. c) It is clarified that this order will not preclude the Applicant from filing appropriate Application for modification of the interim cas1104-10.sxw 10 order operating in the Second Appeal, namely, the order dated 6th September, 2005 passed in C.A.No.751/2005 or for any other interim order. If such an Application is filed, the same will be heard and decided on its own merits and in accordance with law. (d) The undertaking given by the Respondent Nos. 4 and 5 that they will not deal with the suit property in any manner is accepted. This would, however, subject to the right of the Applicants to file appropriate Civil Application as stated above and the orders which may be passed in such Application. (e) Subject to the aforesaid clarification, the Civil Application is disposed off. [GIRISH GODBOLE, J.]