AO/122/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 122 of 2008 With CIVIL APPLICATION No. 4514 of 2008 In APPEAL FROM ORDER No. 122 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? ========================================================= DEVAN KANTILAL SHAH - Appellant(s) Versus VIJAYANT CO-OP. HSG. SOC. LTD - Respondent(s) ========================================================= Appearance : MR JB PARDIWALA for Appellant(s) : 1, MR ZUBIN F BHARDA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/10/2008 ORAL JUDGMENT 1. Present Appeal from Order under Order XLIII Rule 1 of the Civil Procedure Code is filed by the AO/122/2008 2/10 JUDGMENT appellant – original defendant to quash and set aside the order dated 19.03.2008 passed by the learned 3rd Additional Civil Judge, Navsari below Exh.5 in Special Civil Suit No.3 of 2008 by which the learned Trial Court has allowed the application Exh.5 submitted by the respondent herein- original plaintiff restraining the appellant – original defendant from putting up construction of compound wall. 2. The petitioner – original defendant has purchased land bearing Survey No.4681 admeasuring 965.44 Sq.Mts. and Survey No.4682 admeasuring 194.66 Sq.Mts. by registered sale deed No.4219 dated 30.12.2002 for sale consideration of Rs.9,18,000/- executed by respondent – plaintiff society. At the relevant time, land in question was in Zone 'A' and therefore, FSI at the relevant time was different. That thereafter, Zone has been changed from 'A' to 'C' and therefore, FSI is also changed and as per new FSI and as per respondent-plaintiff it is not permissible for the petitioner – original defendant to put up any construction on the aforesaid land in AO/122/2008 3/10 JUDGMENT question and therefore, the respondent – plaintiff had instituted Special Civil Suit No.3 of 2008 in the Court of learned Civil Judge, Navsari praying for declaration that the sale deed executed in favour of the appellant be declared as null and void and the appellant be ordered to hand over the possession of the suit property to the plaintiff – society. The appellant was apprehending that somebody might encroach upon the land which is open land and therefore, to protect his property the appellant submitted application for requesting permission from the Navsari Nagarpalika permitting him to construct compound wall and the Navsari Nagarpalika has granted permission to the appellant to construct compound wall and accordingly the appellant was to construct compound wall. The respondent – plaintiff submitted application Exh.5 for interim injunction restraining the appellant – original defendant from constructing compound wall. Said application was opposed by the appellant – original defendant by submitting that the land is owned by him, he cannot be restrained from constructing compound wall that too after obtaining necessary permission from competent authority. It is AO/122/2008 4/10 JUDGMENT submitted that the appellant – original defendant was not going to put up any construction on the land in question but was constructing only compound wall to protect his property and therefore, it was requested to dismiss application Exh.5. The learned Trial Court vide impugned order allowed Exh.5 restraining the appellant – original defendant from putting up / constructing compound wall on his own land. Being aggrieved and dissatisfied with the order passed below Exh.5 in Special Civil Suit No.3 of 2008, the appellant – original defendant has preferred present Appeal from Order. 3. Mr.J.B.Pardiwala, learned Advocate appearing for the appellant – original defendant has vehemently submitted that the learned trial Court has materially erred in allowing application Exh.5 submitted by the respondent – plaintiff restraining the appellant – original defendant from putting up constructing compound wall on his own land. It is submitted that the appellant – original defendant does not propose to put up any construction at present and was only constructing compound wall to protect his own AO/122/2008 5/10 JUDGMENT property purchased by the appellant. It is submitted that even the appellant had obtained necessary permission from competent authority – Navsari Nagarpalika and even notice were served upon the society to submit objections, if any against granting of such permission. However, the plaintiff and Office bearers did not submit any objections and thereafter when permission came to be granted, it is not open for the plaintiff now to restrain the appellant from constructing compound wall. It is submitted that if compound wall is constructed there will not be any breach of FSI and it is not the case of the plaintiff that by putting up construction on compound wall there will be breach of FSI. It is further submitted that as such suit for such relief on the aforesaid ground itself is not maintainable. Therefore, it is requested to allow present Appeal from Order. 4. Appeal from Order is opposed by Mr.Zubin Bharda, learned Advocate for respondent – Society. It is submitted that the plot in question is used by the members of the respondent – Society for parking etc AO/122/2008 6/10 JUDGMENT and from three sides there is compound wall and therefore, same is protected from encroachers. It is submitted that in view of change in Zone now FSI is already exhausted and therefore, no further construction is permissible on the land in question and therefore, sale deed in favour of the appellant – original defendant are liable to be cancelled. Therefore, there are all chances of succeeding in suit. It is submitted that in the facts and circumstances of the case when the learned trial Court has exercised discretion in favour of the plaintiff granting injunction at Exh.5, same may not be interfered by this Court and therefore, it is requested to dismiss the present Appeal from Order. 5. It is an admitted position that suit property in question has been purchased by the appellant – original defendant by registered sale deed dated 30.12.2002 for sale consideration of Rs.9,18,000/- and same is purchased from the respondent – plaintiff society. Thus, the appellant – original defendant is absolute owner of the aforesaid land in question. Therefore, the appellant – original AO/122/2008 7/10 JUDGMENT defendant has right to protect his own property. To protect his own property and same is not misused by others, the appellant wanted to put up construction of compound wall and for that he submitted application for permission with Nagarpalika. Competent authority issued notice and invited objections against grant of such permission and it has come on record that notices were served upon the plaintiff but nobody raised any objections and thereafter, competent authority – Nagarpalika has granted permission to the appellant to put up construction of compound wall. It is an admitted position that respondent – plaintiff society has no right, title over the land in question. They have sold the property for sale consideration as far as back in 2002. Therefore, the appellant – original defendant cannot be restrained from putting up construction of compound wall to protect is own property. Suit has been filed by the respondent – plaintiff for declaration that sale deed in favour of the appellant – original defendant be declared as null and void and in view of subsequent change in Zone from 'A' to 'C', FSI is also changed and AO/122/2008 8/10 JUDGMENT therefore, as per new Zone and FSI, the appellant would not be in a position to put up construction. Prima–facie, it appears that said suit might not be maintainable on the aforesaid ground. Aforesaid question might come when the appellant – owner wants to put up construction and submit plans. At present, the appellant – original defendant does not propose to put up any construction, therefore, there is no question of breach of FSI. The appellant wants to construct only compound wall and it is nobody's case that by constructing compound wall there will be breach of FSI. The contention on behalf of the society that members are using said plot for parking etc., it is an admitted position that the appellant had purchased plots and suit land from society for sale consideration of Rs.9,18,000/- in the year 2002 and is absolute owner of the said property. Members of the Society cannot use land in question as it is owned by the appellant – original defendant at the cost of the appellant. Once the land in question is sold and the appellant has become absolute owner, the Society has no right, title and interest over the land in question, therefore, they cannot be permitted AO/122/2008 9/10 JUDGMENT to use the said land. 6. Initially it was suggested that even the appellant – original defendant be permitted to put up wire fencing but the learned Advocate for the respondent – plaintiff objected to the same also. Thus reasonable suggestion of the learned Advocate for the appellant also has not been accepted by the learned Advocate for the respondent – plaintiff. Even Mr.Pardiwala, learned Advocate for the appellant has submitted that if the appellant is permitted to construct compound wall and if ultimately any adverse order is passed in the Suit, the appellant will not claim any equity. 7. Considering above, when the appellant is absolute owner of the land in question which is purchased from the plaintiff – society and wants to put up compound wall to protect his own property from the encroacher and misuse by others and when the appellant has obtained permission from competent authority – Nagarpalika, the appellant cannot be restrained from putting up compound wall. Under the AO/122/2008 10/10 JUDGMENT circumstances, impugned order passed by the learned trial Court below Exh.5 deserves to be quashed and set aside. 8. For the reasons stated above the Appeal from Order succeeds. The impugned order dated 19.03.2008 passed by the learned 3rd Additional Civil Judge, Navsari below Exh.5 in Special Civil Suit No.3 of 2008 is hereby quashed and set aside. Appeal from Order is accordingly allowed with cost which is quantified at Rs.5,000/- (Rupees Five Thousand only). In view of allowing Appeal from Order, no further order in Civil Application is required. [M.R.Shah,J.] satish