AO/146/2003 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 146 of 2003 WITH APPEAL FROM ORDER No. 213 of 2003 WITH CIVIL APPLICATION No. 3695 of 2003 In APPEAL FROM ORDER No. 213 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE P.B.MAJMUDAR ================================================================ 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 ? ========================================================= SHANTIBHAI MOTIBHAI PATEL & OTHERS Versus ARVIND RAMPRASAD BAROT & ANOTHER ========================================================= AO/146/2003 2/32 JUDGMENT Appearance : APPEAL FROM ORDER No. 146 of 2003 MR SB VAKIL with MS TRUSHA K PATEL for Appellants MR MIHIR THAKORE with MR NACHIKET A DAVE for Respondents. APPEAL FROM ORDER No. 213 of 2003 MR MIHIR THAKORE with MR NACHIKET A DAVE for Appellants. MR SB VAKIL with MS TRUSHA K PATEL for Respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR Date : 22/01/2007 COMMON ORAL JUDGMENT 1. Since both these Appeals are directed against the order dated 24.09.2002 passed by learned Civil Judge, Senior Division, Ahmedabad Rural below Exh. 5 in Special Civil Suit No. 130 of 2002, both these appeals are disposed of by this common judgment. 2. By the impugned order, the learned trial Judge has partly allowed the interim injunction application submitted by the original plaintiffs of the suit and the defendants are temporarily restrained from selling, mortgaging, assigning, gifting, transferring, letting the properties bearing Revenue Survey No. 258/1, 341/3, 351, 198, 213/1 and 34. The defendants are also restrained from creating any third party interest over the aforesaid properties and from making any construction thereon and from handing over possession of the same to any other person in any manner whatsoever. However, as regards the other properties i.e. lands bearing Survey No. 218/1, AO/146/2003 3/32 JUDGMENT 450, 37, 196 and 298, which is subject matter of the suit, prayer for interim injunction is not granted. 3. Being aggrieved by the aforesaid order of the trial Court granting injunction in connection with the aforesaid properties, original defendants have filed A.O. No. 146 of 2003 as according to the original defendants, the learned trial Judge should not have granted the injunction at all in connection with any of the properties. 4. Original Plaintiffs have also preferred Appeal from Order i.e. No. 213 of 2003 against the order of the learned trial Judge whereby the trial Judge has refused injunction qua some of the properties, which are the subject matter of the suit. 5. Since both these appeals are admitted, they are taken up for final hearing and disposed of by this common judgment, with the consent of the parties. Facts of the case are as under: 6. Special Civil Suit No. 130 of 2002 is instituted by one Triveniben, stating to be widow of Bhalabhai @ Bhailalbhai Ishwarbhai Patel, and her daughter Kailasben, stating to be daughter of the said Bhalabhai @ Bhailalbhai Ishwarbhai Patel. The said suit is pending before Civil Judge, Senior Division, Ahmedabad Rural, [now Senior Civil Judge, Ahmedabad Rural]. The said suit is filed for partition and separate share. The case of the plaintiffs in the plaint is that plaintiff No.1 is mother and plaintiff No.2 is daughter. It is the case of AO/146/2003 4/32 JUDGMENT the plaintiffs that plaintiff No.1 had married Bhalabhai @ Bhailalbhai Ishwarbhai Patel and out of the said wedlock one daughter namely Kailasben, plaintiff No.2, was born. The case of the plaintiffs is that the plaintiffs and the defendants were, and are, close relatives and part and parcel of the same family, and therefore, the plaintiffs are co-owners and in co- possession of the suit properties, which are joint family properties. It is also the case of the plaintiffs that common ancestor of the plaintiffs and the defendants was one Ishwarbhai Shankarbhai Patel who had large agricultural lands and other properties at village Bodakdev, Daskroi Taluka, Ahmedabad District. The said Ishwarbhai had two sons, namely Motibhai and Bhalabhai @ Bhailalbhai and two daughters, namely Diwaliben and Hetiben. The said Ishwarbhai died intestate somewhere in 1960. According to the plaintiffs, whatever properties which were in possession of Ishwarbhai were ancestral properties. The pedigree is also given at page 5 of the plaint. It is also the case of the plaintiffs that daughters of Ishwarbhai, i.e., Diwaliben and Hetiben relinquished their rights many years back and in that view of the matter, half of the properties of the said deceased Ishwarbhai came to the share of Motibhai and another half came to the share of Bhalabhai @ Bhailalbhai. It is further the case of the plaintiffs that both Motibhai and Bhalabhai @ Bhailalbhai had no other self-acquired properties and were in possession of only ancestral properties. Ishwarbhai Shankarbhai Patel as well as his wife died intestate, and their two daughters, Diwaliben and Hetiben, relinquished their rights in the suit properties. Thus, Motibhai and Bhalabhai @ Bhailalbhai became full owners of their AO/146/2003 5/32 JUDGMENT respective shares. The properties of said Ishwarbhai Shankarbhai Patel have been mentioned in paragraph 6 of the plaint, and as per the description given therein, said Ishwarbhai Shankarbhai Patel left behind him ten agricultural lands and eight houses. Prior to the death of Ishwarbhai Shankarbhai Patel in the year 1960, Bhalabhai @ Bhailalbhai Ishwarbhai Patel, husband of plaintiff No.1 and father of plaintiff No.2 died intestate, leaving behind him the plaintiffs as his legal heirs. It is the case of the plaintiffs that accordingly both the plaintiffs are entitled to inherit the share of deceased Bhalabhai @ Bhailalbhai Ishwarbhai Patel and they are entitled to have equal share in the joint family properties, and whatever is the share of the said Bhailalbhai, the plaintiffs are entitled to inherit undivided share as half of the undivided share of deceased Ishwarbhai Shankarbhai Patel belongs to Motibhai and half of it belongs to Bhailalbhai. It is further the case of the plaintiffs that at the time of death of Bhalabhai @ Bhailalbhai Ishwarbhai Patel, plaintiff No.1 was aged about 26 years and plaintiff No.2 was aged about 2 years and after staying with the family members of deceased Bhalabhai @ Bhailalbhai for some time, the plaintiff No.1 remarried with one Thakarshibhai Gopabhai Kapadia and the said marriage took place with the consent of family members of deceased Bhalabhai @ Bhailalbhai Ishwarbhai Patel. These facts are mentioned in paragraph 8 of the plaint. Plaintiff No.1 thereafter went to reside with the said husband whom she had remarried and she took along with her the minor child, plaintiff No.2. It is also averred in para 8 of the plaint that subsequently, plaintiff No.2 became major and she has been married to one Balubbai Popatbhai Ramani AO/146/2003 6/32 JUDGMENT since last 30 years. It is the case of the plaintiffs that they have never relinquished their right in the family properties of Bhalabhai @ Bhailalbhai Ishwarbhai Patel nor have they transferred their share to anyone. According to the plaintiffs, the plaintiffs are entitled to have half of the undivided share of the properties of deceased Ishwarbhai Shankarbhai Patel. 7. The plaintiffs have tried to explain the delay in bringing the aforesaid suit by making an averment in paragraph 11 of the plaint by stating that in connection with preparation of draft TP Scheme No.50 for the area, AUDA had called a meeting on 12.02.02 and in that meeting plaintiff No.2 had remained present and at that time, on discussing other issues with the persons present in the meeting, she came to know that the defendants have sold lands bearing survey No. 258/1, 341/3, and 351. The plaintiffs thereafter made necessary inquiries and ultimately came to know about such unauthorised sale of the said lands. Plaintiff No.2 thereafter tried to contact the defendants but they gave evasive replies and informed the plaintiffs that if they give consent, they will be paid Rs.5 lakhs. It is also the case of the plaintiffs in paragraph 12 of the plaint that in view of such reply, plaintiffs have tried to verify the facts from the revenue records and at that time, they came to know that in the revenue record, an entry is posted on 04.05.1963 being entry No. 1419 whereby the names of only Motibhai, Diwaliben and Hetiben are recorded as legal heirs of deceased Ishwarbhai Shankarbhai Patel but the names of the plaintiffs as legal heirs of deceased Bhalabhai @ Bhailalbhai Ishwarbhai Patel have not been recorded in the revenue records. According to the AO/146/2003 7/32 JUDGMENT plaintiffs, therefore, incorrect entries are posted in the revenue records. 8. On these and such other grounds, the plaintiffs have filed the aforesaid suit for partition and separate share claiming half of the undivided share of the properties of deceased Ishwarbhai Shankarbhai Patel. It is prayed in the prayer clause that partition may be effected by metes and bounds and the defendants may be directed to handover the possession of the properties which belong to the plaintiffs or the Court Commissioner may be directed to handover portion of the plaintiff's properties. It is also prayed that the defendants may be directed to pay to the plaintiffs a sum of Rs.4,75,00,000/- towards the share of the plaintiffs in connection with the properties which they have already sold and the said amount may be directed to be paid with 18% interest. The cause of action, which is worded in paragraph 17 of the plaint, is to the effect that on 12.02.2002 when the plaintiff No.2 attended the meeting organized by AUDA in connection with draft TP Scheme No.50, they came to know about the sale of some of the lands. 9. Along with the suit, the plaintiffs have also pressed into service an application for interim injunction, Exh.5, for restraining the defendants from transferring, alienating or dealing with the properties. 10. The defendants appeared and filed Written Statement at Exh. 15. A common reply was filed to the plaint as well as the application for injunction, Exh.5. The claim of the plaintiffs is denied by the defendants in the written statement. In paragraph 17 of the written AO/146/2003 8/32 JUDGMENT statement, it is averred by the defendants that Bhalabhai @ Bhailalbhai Ishwarbhai Patel died on 16.10.1954. It is further stated in the said paragraph that on 03.07.1963, i.e. about 9 years after the death of Bhalabhai @ Bhailalbhai, Diwaliben and Hetiben relinquished their rights in favour of Motibhai and, therefore, there was no question of the said Diwaliben and Hetiben relinquishing their right in favour of Bhalabhai @ Bhailalbhai Ishwarbhai Patel. Entry No. 1420 mutated in 1963 reflects that the sisters had relinquished their rights in favour of Motibhai only. It is further stated that plaintiff No.1 had remarried in the year 1958,i.e. prior to 1963, but the said fact is suppressed in the suit. In paragraph 18 of the written statement it is averred that only the defendants have got right, title and interest in the suit properties. The defendants have tried to explain in detail by giving particulars of each and every property as to how the properties in question belongs only to the defendants' side. It is further averred in paragraph 18 of the written statement that even otherwise, the plaintiffs have never asserted their rights for more than 40 years since remarriage of plaintiff No.1 and it is not stated in the plaint as to when the plaintiff No.1 remarried. It is therefore the case of the defendants that the suit is clearly time barred. It is further the case of the defendants that the defendants were using and enjoying the suit properties without any interruption for all these years and it was within the knowledge of the plaintiffs that the defendants were using and enjoying the lands in question treating it as lands of their own ownership. It is further averred that the defendants have removed the old construction and put up new AO/146/2003 9/32 JUDGMENT construction on some of the lands and the plaintiffs have never objected to the same. It is the case of the defendants that even going by the principles of adverse possession, the properties belong to the defendants. 11. In the Written Statement, the defendants have also relied upon certain revenue entries which were posted many years back. It is the say of the defendants that after 40 years of posting of entries, the plaintiffs are trying to make out a case that such entries were falsely recorded. 12. The defendants have also resisted the suit on the ground of delay and laches, ouster and adverse possession. 13. The learned trial Judge, after hearing the parties, passed the impugned order dated 24.09.2002 whereby the learned trial Judge has partly allowed the interim injunction application, temporarily restraining the defendants from selling, mortgaging, assigning, gifting, transferring, letting the properties bearing Revenue Survey No. 258/1, 341/3, 351, 198, 213/1 and 34. The defendants were also restrained from creating any third party interest over the aforesaid properties and from making any construction thereon and from handing over possession of the same to any other person in any manner whatsoever. However, as regards the other properties which is subject matter of the suit, prayer for interim injunction was rejected. 14. Learned senior counsel Mr. S.B. Vakil appearing with Ms. Trusha K Patel in Appeal No. 146 of 2003 which is AO/146/2003 10/32 JUDGMENT filed by the original defendants vehemently submitted that the trial Court has not correctly considered the facts and circumstances of the case and even though the plaintiffs have not been able to prove their case, injunction is granted regarding part of the properties, which could not have been granted. It is submitted by Mr. Vakil that plaintiff No.1 remarried as back as in the year 1958 and therefore she cannot ask for partition of the suit property. He further submitted that the plaintiff No.1, at the time of her re-marriage, took the minor daughter with her and the plaintiffs have no right, title and interest in the suit properties. He further submitted that none of the plaintiffs ever tried to assert their right for more than 40 years in connection with the suit properties. Mr. Vakil vehemently submitted that even otherwise, it is a clear case of ouster, and, therefore, the defendants have become full owners of the suit properties. He further submitted that even some of the properties were sold by registered sale deed since long and there can be constructive notice when the properties are sold by registered sale deed, and yet the plaintiffs have not taken any steps for setting aside such sale deeds. Mr. Vakil submitted that one property is sold in 1967, and two other properties are sold in 1991 and 1996 by registered sale deed, yet the plaintiffs have never tried to challenge the said sale deed nor have the plaintiffs joined any of the purchasers in the suit and only a vague prayer is made in the suit for setting aside whatever sale deed that might have been executed by the defendants. It is submitted that the trial Court could not have granted injunction in connection with some of the properties which were sold by the defendants since long more particularly when the plaintiffs have not AO/146/2003 11/32 JUDGMENT joined the purchasers in the suit. Mr. Vakil further submitted that the learned trial Judge has not properly appreciated the evidence at Exh. 17/2. Mr. Vakil further submitted that there is voluminous evidence on record to suggest that lands bearing survey No.218/1, 450, 238, 37 and 196 were self-acquired properties of Motibhai and eight houses which were also subject matter of the suit, were also self-acquired properties of Motibhai. He further submitted that even with regard to the rest of the properties, the plaintiffs have not made out any case and the trial Court could not have granted the injunction application even partly. 15. In connection with land bearing survey No. 218, he submitted that the said land was cultivated by Motibhai and by virtue of the same, Motibhai was stated to be deemed purchaser under the Bombay Tenancy and Agricultural Lands Act, 1948 and entry No. 1063 was posted to that effect. 16. Similarly, regarding survey No. 238, copy of sale deed is produced at Exh. 17/7 showing that the said Motibhai had purchased the same by registered sale deed on 10.08.67. 17. Regarding survey No. 450, the same was purchased by Motibhai with other co-owners jointly who are not family members, and part of the same was already sold to one Jambuvan Association and the said Association has already put up construction on the said land. Though Ishwarbhai used to cultivate the land, his tenancy was terminated vide entry No. 1216. AO/146/2003 12/32 JUDGMENT 18. Mr. Vakil further submitted that regarding land bearing Survey No. 196, Motibhai is deemed purchaser under the Tenancy Act as he was cultivating the land for which entry No. 1953 is already mutated since long, which is at Exh. 17/6. On perusal of entry No. 1216, it becomes clear that name of protected tenant Ranchhodbhai was deleted as he failed to cultivate the land for last 2 years and name of Motibhai was entered as ordinary tenant. 19. Similarly, so far as land bearing survey No. 37 is concerned, the said land is regranted to Motibhai under the Bombay Tenancy Act in the year 1950 even when Bhalabhai @ Bhailalbhai Ishwarbhai Patel was alive, and entry No. 1001 was already posted in the revenue records at the relevant time. 20. Mr. Vakil, therefore, submitted that the trial Court is justified in coming to a conclusion that the said properties were self-acquired properties of deceased Motibhai, and, therefore, it should go to the Branch of said Motibhai i.e. present defendants. Mr. Vakil has tried to justify the order of the trial Court so far as the aforesaid properties are concerned, as there is a cross Appeal from Order No. 213 of 2003 filed by the original plaintiffs. 21. Mr. Vakil further submitted that so far as other lands are concerned for which injunction is granted, the plaintiff had no right even in connection with the same. It is submitted by Mr. Vakil that only in order to extract some money, the litigation is instituted after so many years. Mr. Vakil submitted that after the order of AO/146/2003 13/32 JUDGMENT the trial Court, plaintiff No.1 Triveniben died on 29.11.2003 and one Arvindbhai Ramprasad Barot and Haresh Keshavlal Patel have applied for being brought on record as legal representatives of deceased Triveniben in the appeal as they have produced a Will of deceased Triveniben by which the said Triveniben bequeathed her properties in favour of the aforesaid two legatees and they have been accordingly brought on record. It is submitted by Mr. Vakil that the aforesaid two persons are land-brokers and the litigation in question is sponsored by them. It is submitted by Mr. Vakil that even criminal cases are pending against them in connection with forgery of a Will of someone else and the present defendants have also filed some proceedings against the aforesaid two persons and, therefore, taking advantage of the situation, after so many years, the said two persons have instigated the plaintiffs to institute the suit and the fact that subsequently the Will is brought on record in this Appeal from Order under which the said two persons are beneficiaries, that itself shows that the whole litigation is instituted at their instance as virtually they are interested in the disputed properties. It is further submitted that plaintiff No.2 has filed an affidavit to the effect that the Will executed by her mother is correct. The said fact itself speaks as to who are the real persons behind the litigation. It is submitted that there was no question on the part of the plaintiff No.1 to execute a Will in favour of a stranger. In this connection Mr. Vakil has relied on the averments made in Civil Application No. 1508 of 2006. It is submitted that in another case, Arvind Ramprasad Barot, who is brought on record in view of the so called Will executed in his favour by original plaintiff No.1, AO/146/2003 14/32 JUDGMENT had tried to get a property mutated in his name on the basis of a Will dated 29.09.99 purported to have been executed by one Ramkumar Magniram eventhough the said Ramkumar Magniram was alive. It is submitted by Mr. Vakil that this is the credential of the said Arvind Barot who have given application in this proceedings to be brought on record as legal heir of deceased Triveniben [original plaintiff No.1]. Mr. Vakil further submitted that in the aforesaid case of forged Will , at the instance of Collector, Mamlatdar has already filed a criminal complaint. Mr. Vakil therefore submitted that Mr. Arvind Barot is in the habit of creating false and fabricated Wills for grabbing properties and that unless he produces a probate on record, no importance can be given to such a Will which deceased Triveniben is stated to have executed in favour of strangers. Mr. Vakil further submitted that the said Arvind Barot is residing at Thaltej, Daskroi Taluka, Ahmedabad i.e. nearby the suit properties whereas deceased Triveniben was admittedly residing at Amreli District, which is at a great distance from Ahmedabad. He further submitted that plaintiff no.2, daughter of Triveniben, is also married since about 30 years and is also residing at Village Saldi, District Amreli. 22. It is submitted by Mr. Vakil that this is a clear case of trafficking in litigation since the aforesaid two persons are sponsoring the litigation who want to grab away defendants' properties. It is submitted that the aforesaid people who are so-called beneficiaries are sponsoring the litigation and it cannot be said that they have any genuine interest in the so called co-parcenory and joint family properties of the defendants. Mr. Vakil AO/146/2003 15/32 JUDGMENT submitted that in any case, they being strangers, even if it is proved that so called Will is genuine, then also they cannot ask for joint possession being strangers to the family. Mr. Vakil further submitted that so far as the right of plaintiff No. 2 is concerned, it is a clear case of ouster since the said plaintiff has never bothered to claim her right or interest in the property and the defendants have been dealing with the properties in their own manner by cultivating the lands and have also put up some construction and some of the lands have already been sold. Mr. Vakil further submitted that the plaintiffs have failed to make out any case, nor have they made any averments as to how the suit is within limitation and there is nothing to show that at any point of time during the last about 40 years either of the plaintiffs have tried to ask for any share in the suit property or have tried to assert their right in any manner. It is submitted that if injunction is granted even regarding part of the land, it is not the original plaintiffs but only the aforesaid persons who are the so called beneficiaries of the Will , who are benefited by the injunction, and under the circumstances, injunction being an equitable relief, is not required to be granted. Mr. Vakil further submitted that the aforesaid two persons were not parties to the civil suit, but in view of the death of plaintiff No.1, on the basis of their application for being joined as parties based on the aforesaid Will , they are joined as parties during the pendency of these appeals. Mr. Vakil further submitted that since the purchasers of the properties which were sold have not been joined as parties, injunction