AO/315/2007 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 315 of 2007 With CIVIL APPLICATION No. 11425 of 2007 In APPEAL FROM ORDER No. 315 of 2007 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 ? ===================================================== ARJANBHAI POPATBHAI HAPALIYA & 2 - Appellant(s) Versus HARIBHAI KANJIBHAI THUMAR - Respondent(s) ===================================================== Appearance : MR RUTURAJ NANAVATI for Appellant(s) : 1 - 3. MR HARIN P RAVAL for Respondent(s) : 1, MR MEHUL S SHAH for Respondent(s) : 1, MR SURESH M SHAH for Respondent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 28/08/2008 AO/315/2007 2/13 JUDGMENT ORAL JUDGMENT 1. Admit. Shri Mehul Shah, learned advocate waives service of notice on behalf of the respondent. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today. 2. Present Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure is filed by the appellants original defendants challenging the order dated 18.8.2007 passed by the learned 7th Additional Senior Civil Judge, Rajkot below Exh. 5 in Special Civil Suit No. 57 of 2007 by which the learned trial Court has partly allowed the application Exh. 5 submitted by the respondent original plaintiff by directing the appellants-defendants to maintain status quo with respect to the suit land. 3. Respondent herein original plaintiff had instituted Special Civil Suit No. 57 of 2007 in the Court of learned Principal Senior Civil Judge, Rajkot for specific performance of the agreement to sell dated 21.2.2007 executed by the original defendant No.1 with respect to the land bearing survey No. 431 AO/315/2007 3/13 JUDGMENT paiki plot No. 49 admeasuring 332.8 sq.yds. As per the plaintiff, original defendant No.1 had agreed to sell the aforesaid property in question vide agreement to sell dated 21.2.2007 for a sale consideration of Rs. 8,75,000/- but as per the plaintiff he has paid Rs. 2,51,000/- in cash towards part sale consideration and the defendant No.1 was required to execute the sale deed within 90 days on getting the title clearance certificate. It is submitted that inspite of the aforesaid agreement to sell in existence the defendant No.1 sold the suit property in question in favour of the defendants No.2 and 3 by two different sale deeds by dividing the land into to portion vide sale deed dated 7.3.2007 and, therefore, the plaintiff filed the aforesaid suit for specific performance of the aforesaid agreement to sell dated 21.2.2007 for declaration that defendants No.2 and 3 have not got any title and that they are required to execute the sale deed in favour of the plaintiff. In the said suit, the plaintiff submitted the application Exh. 5 for interim injunction restraining the defendants more particularly, defendants No.2 and 3 from transferring AO/315/2007 4/13 JUDGMENT / alienating the suit property and / or restraining them from put up any construction and / or changing the nature of the suit property till the final disposal of the suit. After considering the submissions made on behalf of the respective parties, the learned trial Court vide impugned order dated 18.8.2007 partly allowed the application at Exh. 5 by directing the respective parties to maintain status quo. Being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh. 5, appellants-defendants have preferred the present Appeal from Order. 4. Shri N.D. Nanavati, learned Senior Advocate appearing for the appellants has vehemently submitted that the learned trial Court has materially erred in directing the appellants to maintain status quo with respect to the suit property. It is submitted that appellants have purchased the property in question by registered sale deed on payment of full sale consideration and they are bonafide purchaser and, therefore, they cannot be restrained from developing the land. It is further submitted that in fact, the AO/315/2007 5/13 JUDGMENT agreement to sell itself is disputed and the plaintiff has failed to prove the part sale consideration. It is submitted that when the Satakhat and the consideration has been disputed the original plaintiff is prima facie required to prove the payment of part sale consideration as alleged to have been paid at the time of execution of the agreement to sell. It is submitted that the appellants No. 1 and 2 have purchased the property in question for a sale consideration of Rs. 25,11,000/- against the consideration of Rs. 8,75,000/- mentioned in the alleged agreement to sell dated 21.2.2007. It is submitted that even the appellants have also obtained necessary permission for construction after getting lay out plans sanctioned by the Competent Authority. Shri Nanavati, learned Senior Advocate has relied upon the decision of this Court in the case of Khimjibhai Harjivanbhai Patadia Vs. Patel Govindbhai Bhaagvanbhai & Ors. reported in 2006(4) GLR, 3058 and relying upon the said judgment, it is submitted that when the execution of the agreement to sell and the consideration in the said agreement to sell is disputed and the amount is alleged to have been paid AO/315/2007 6/13 JUDGMENT by cash, the persons who claiming right or interest on the strength of agreement to sell has to prima facie satisfy the Court with respect to source and the payment of aforesaid amount and, therefore, when no prima facie evidence is produced, the plaintiff has failed to prove the consideration. Therefore, it is submitted that the learned trial Court has committed an error in partly allowing the application Exh. 5 directing the appellants to maintain status quo. Shri Nanavati, learned Senior Advocate has submitted that even appellants are ready and willing to deposit an amount of Rs. 5 lacs to show their bonafides. So that if ultimately any order adverse to them is passed, in that case, appropriate order can be passed by the learned trial Court to compensate the plaintiff. By making above submissions and relying upon the aforesaid decision, it is requested to allow the present appeal from order by quashing and setting aside the order passed by the learned trial Court. 5. Appeal from Order is opposed by Shri Mehul Shah, learned advocate for the respondent-original AO/315/2007 7/13 JUDGMENT plaintiff. It is submitted that there was agreement to sell in favour of the the plaintiff dated 21.2.2007 executed by the defendant No.1 and at the time of execution of the agreement to sell an amount of Rs. 2,5,1,000/- was paid towards sale consideration and subsequently the defendant No. 1 has sold the suit land in favour of the defendants No. 2 and 3 by dividing the same into two parts and, therefore, learned trial Court has rightly granted interim injunction directing the defendants to maintain status quo. It is submitted that as such with respect to the very property in question a Civil Suit No. 988 of 1984 was pending and the defendant has not pointed out even the same to the defendants No. 2 and 3 therefore. it is rightly observed by the learned trial Court that defendants No. 2 and 3, have not taken due care and diligence before purchasing the property in question for sale consideration of huge amount of 25,11,000/-. It is submitted that to avoid any further multiplicity of proceedings the learned trial Court has rightly passed the order directing the defendants to maintain status quo. It is submitted that when the learned trial Court has AO/315/2007 8/13 JUDGMENT exercised discretion judicially, the same is not required to be interfered with by this Court, therefore, it is requested to dismiss the present appeal from order. 6. In reply, Shri Nanavati, learned Senior Advocate appearing for the appellants has submitted that so far as the suit of 1984 is concerned original defendant No. 1 is not party to the said suit and even in the said suit the suit plot is not the subject matter and there was no injunction against defendant No.1 in the aforesaid suit of 1984. It is further submitted that appellants No. 1 and 2 have purchased the property in question after verifying the relevant document. Therefore, it is requested to allow the present appeal from order. 7. Heard the learned advocates for the respective parties. 8. At the outset, it is required to be noted that original plaintiff is claiming the right on the basis of alleged agreement to sell dated 21.2.2007 and it AO/315/2007 9/13 JUDGMENT is the case on behalf of the plaintiff that he has paid Rs. 2,51,000/- towards sale consideration by cash at the time of execution of the agreement to sell dated 21.2.2007. It is required to be noted that agreement to sell as well as alleged sale consideration has been disputed. Under the circumstances, when the part sale consideration is alleged to have been paid by cash and when the agreement to sell as well as consideration has been disputed, it is for the plaintiff to even prima facie satisfy the Court by producing books of account, passbook etc,. which the plaintiff has failed to produce. As held by learned Single Judge in the case of Khimjibhai Harjivanbhai Patadia (supra) however in the agreement to sell movable property receipt issuing the part payment and consideration amount by the purchaser is mentioned and the said receipt is seriously disputed by the seller plaintiff has to even produce prima facie evidence to show as to in which manner he has paid the said part consideration in cash. In the present case, the plaintiff has not produced anything to show that whether he has withdrawn the said amount from any bank or he has AO/315/2007 10/13 JUDGMENT borrowed the money from anyone. Therefore, it can be safely presumed that theory of so-called payment is not at all believable. 9. Appellants No. 1 and 2 have purchased the property in question for a sale consideration of Rs. 25,11,000/- by registered sale deed. It is required to be noted that in the alleged agreement to sell dated 21.2.2007 in favour of the plaintiff the sale consideration is of Rs, 8,75,000/- and against which the sale consideration shown in the registered sale deed in favour of the appellants No.1 and 2 dated 17.3.2007,the same is of Rs. 25,11,000/- i.e. approximately 17 lacs more and that too within a period of one month. It is also required to be noted that even appellants have also obtained the necessary permission from the competent authority for putting up the construction on the land in question. 10. It is an admitted position that the alleged agreement to sell dated 21.2.2007 alleged to have been in favour of the plaintiff is not registered. Under the circumstances, when the appellant Nos. 1 AO/315/2007 11/13 JUDGMENT and 2 have purchased the property in question for sale consideration of Rs. 25,11,000/- by registered sale deed, they are the bonafide purchaser of the property in question and, therefore, they cannot be restrained from developing the land and putting up the construction. Under the circumstances, it appears that learned trial Court has committed an error in allowing the application Exh. 5 directing the appellants to maintain status quo. Shri Nanavati, learned Senior Advocate appearing for the appellants has submitted that appellants are ready and willing to deposit sum of Rs. 5 lacs in the trial Court to show their bonafide and it is requested that they may be permitted to develop the land in question as they have incurred substantial expenses and have paid the huge amount of Rs. 25,11,000/- towards sale consideration. Considering the above and more particularly, when the plaintiff has failed to prima facie satisfy the Court with respect to the payment of Rs. 2,51,000/- alleged to have been paid towards sale consideration at the time of execution of the agreement to sell dated 21.2.2007 and on the other hand the appellants No. 1 and 2 are the bonafide AO/315/2007 12/13 JUDGMENT purchaser who have purchased the property in question by registered sale deed for sale consideration of Rs. 25,11,000/-, the impugned order passed by the learned trial Court directing the appellants to maintain status quo is required to be quashed and set aside. 11. For the reasons stated above, the Appeal from Order succeeds. The impugned order dated 18.8.2007 passed by the learned 7th Additional Senior Civil Judge, Rajkot below Exh. 5 in Special Civil Suit No. 57 of 2007 is hereby quashed and set aside. However, the appellants are directed to deposit an amount of Rs. 5 lacs with the trial Court on or before 28.11.2008 to show their bonafide as per the statement made by the learned Senior Advocate appearing for the appellants and on such deposit the learned trial Court is directed to invest the same in Fixed Deposit in any Nationalized Bank initially for a period of 5 years. CIVIL APPLICATION NO. 11425 OF 2007 In view of the order in Appeal from Order, no order in Civil Application. AO/315/2007 13/13 JUDGMENT (M.R.SHAH, J.) kaushik