AO/311/2007 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 311 of 2007 With CIVIL APPLICATION No. 11366 of 2007 In APPEAL FROM ORDER No. 311 of 2007 With SPECIAL CIVIL APPLICATION No. 22300 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? ========================================================= JAYSUKHBHAI JIVRAJBHAI DHANANI & 1 - Appellant(s) Versus VAJUBHAI SOMABHAI BARAIYA & 3 - Respondent(s) ========================================================= Appearance : MR TUSHAR MEHTA for Appellant(s) : 1 - 2. MR AB MUNSHI for Respondent(s) : 1, MS KJ BRAHMBHATT for Respondent(s) : 2 - 3. NOTICE SERVED BY DS for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/08/2008 ORAL JUDGMENT AO/311/2007 2/19 JUDGMENT 1. As in both these Appeal from Order and Special Civil Application, dispute is with regard to same property and between same parties, they are being disposed of by this common order. 2 Appeal from Order No.311 of 2007 is filed by the appellants – original defendant Nos.3 and 4 of Regular Civil suit No.196 of 2001 to quash and set aside order passed below Exh.5 dated 08.08.2007 passed by the learned 6th Additional Senior Civil Judge, Surat in Regular Civil Suit No.196 of 2001 in allowing the said application Exh.5 restraining the appellants herein – original defendant Nos.16 & 17 from causing any disturbance or obstruction in the possession of the plaintiff upon the suit land till final disposal of the suit. By the impugned order, the defendants are also further restrained from transferring or to making any construction upon the suit land or to create any right on the suit land, till final disposal of the suit. AO/311/2007 3/19 JUDGMENT 3. Special Civil Application No.22300 of 2007 is filed by the petitioner – original plaintiff who is appellant No.1 in Appeal from Order No.311 of 2007 under Article 227 of the Constitution of India for quashing and setting aside the order dated 08.08.2007 passed below Exh.5 in Regular Civil Suit No.72 of 2001 by the learned 6th Additional Senior Civil Judge, Surat, by which the learned trial Court has dismissed the application Exh.5 submitted by the petitioner. 4. At the outset, it is required to be noted that both the aforesaid Civil Suits i.e. Regular Civil Suit No.72 of 2001 and Regular Civil Suit No.196 of 2001 can be said to be counter suits. Respondent No.1 in Appeal from Order No.311 of 2007 had instituted Regular Civil Suit No.196 of 2001 against the defendants for specific performance of agreement to sale which was executed in favour of the plaintiff and defendant Nos.3,4 and 5 dated 24.06.1997 and to AO/311/2007 4/19 JUDGMENT get sale deed executed and for declaration and permanent injunction. The appellants herein – original defendant Nos.3 and 4 of Regular Civil Suit No.196 of 2001 also instituted Regular Civil Suit No.72 of 2001 against the plaintiff of Regular Civil Suit No.196 of 2001 and others for declaration and permanent injunction declaring that said defendants have no right to obstruct causing disturbance and change etc. possession ownership rights of the plaintiff in the land bearing Survey No.189 Block No.118 situated at Village – Utran, Taluka – Choriyasi, District – Surat. It was further prayed to grant permanent injunction restraining defendants from causing disturbance, obstructing interference etc. in the possession and ownership of the plaintiff in the suit land. 5. In the Regular Civil Suit No.196 of 2001 original plaintiff – Vajubhai Somabhai Bariya, submitted application Exh.5 for interim injunction restraining the defendants of the said AO/311/2007 5/19 JUDGMENT suit from disturbing his possession and restraining the said defendants from entering into the land in question. Similarly, plaintiff of Regular Civil Suit No.72 of 2001 also submitted application Exh.5. Vide order dated 08.08.2008, the learned trial Court allowed the application Exh.5 submitted by the original plaintiff of Regular Civil Suit No.196 of 2001. On the very day, by different order passed below Exh.5 in Regular Civil suit No.72 of 2001, the learned trial Court dismissed the said application. Being aggrieved and dissatisfied with aforesaid both the orders, one passed below Exh.5 in Regular civil Suit No.196 of 2001 and another passed below Exh.5 in Regular Civil Suit No.72 of 2001, present Appeal from Order and Special Civil Application are filed. 6. It was the case on behalf of the respondent No.1 herein in Appeal from Order and original plaintiff in Regular Civil Suit No.196 of 2001 that the lands in question bearing Survey AO/311/2007 6/19 JUDGMENT No.189, Block No.118, situated at Village – Utran, Taluka – Choriyasi, District – Surat was of the ownership of the defendant Nos.1 and 2 and original plaintiff and defendant Nos.3,4 and 5 of Regular Civil Suit No.196 of 2001 agreed to purchase said land jointly from original defendant Nos.1 and 2 for sale consideration of Rs.17 lacs and agreement to sale dated 24.06.1997 came to be executed by the original land owners in favour of the plaintiff and defendant Nos.3,4 and 5 of Regular Civil Suit No.196 of 2001 and Rs.3 lacs were paid by way of earnest money. 7. It is the case on behalf of the plaintiff that with a mala-fide intention and with a view to take away the rights of the plaintiff, the defendants – original land owners and appellants herein concocted with each other and original defendant No.3 created false document with a view to defeat the rights of the plaintiff and therefore, original defendant No.3 of Regular Civil suit No.196 of 2001, filed one Regular AO/311/2007 7/19 JUDGMENT Civil Suit No.72 of 2001 on the basis of false and concocted document and prayed for declaration and permanent injunction. Therefore, aforesaid Regular Civil Suit No.196 of 2001 came to be instituted for Specific performance of agreement to sale dated 24.06.1997 and for declaration and permanent injunction. It was specifically the case on behalf of the plaintiff that he is in possession of the land in question and same may not be disturbed. It appears that Suit was filed for declaration and permanent injunction. However, subsequently after filing written statement by defendant Nos.1 to 4, the plaintiff came to know execution of the sale deed in favour of defendant Nos.3 and 4 executed by defendant Nos.1 and 2 and therefore, the plaintiff sought amendment in the suit and same came to be allowed. It appears that it was the case on behalf of defendant Nos.3 and 4 – appellants herein that original plaintiff – respondent Nos.1 herein in Appeal from Order extinguished his rights and withdrew his name from partnership of AO/311/2007 8/19 JUDGMENT so called 1997 transaction and therefore, original defendant Nos.1 and 2 – original owners executed sale deed in favour of defendant Nos.3 and 4. It is also required to be noted that as such defendant Nos.3 and 4 denied any agreement to sale dated 24.06.1997. However, considering averments in Regular Civil suit No.72 of 2001 filed by the original defendant No.3 of Regular Civil Suit No.196 of 2001, the learned trial Court did not accept the same as it was admitted by him that agreement to sale was executed but subsequently the plaintiffs extinguished his right and withdrew his name from partnership of so called 1997 transaction. It appears that original defendant Nos.1 and 2 after filing of written statement, subsequently filed one affidavit produced at Exh.77 stating that earlier defendant Nos.1 and 2 were in influence of defendant Nos.3 and 4 and it was stated in the affidavit that due to misconception and misrepresentation made by defendant Nos.3 and 4, they executed sale deed in favour of defendant AO/311/2007 9/19 JUDGMENT Nos.3 and 4. It was stated to them by the defendant Nos.3 and 4 that the plaintiff had extinguished his right and withdrew his name from partnership of so called 1997 transaction and his right to purchase the said property and only two persons – defendant Nos.3 and 4 remained to purchase the property and believing the same, defendant Nos.1 and 2 executed sale deed in favour of defendant Nos.3 and 4. The so called extinguishment of right came to be produced at Mark 112/1. Considering and appreciating the said document which was suggested to have been written on 24.06.1997 which was on stamp paper on 04.10.1999, the learned trial Court came to the conclusion that said document pertaining to extinguishment of right by the plaintiff is got up one and prima-facie found that original defendant Nos.3 and 4 have concocated the documents, the learned trial Court allowed the application Exh.5 in Regular Civil Suit No.196 of 2001 and by separate order dismissed the application Exh.5 filed by appellant No.1 of AO/311/2007 10/19 JUDGMENT Appeal from Order No.311 of 2007 in Regular Civil Suit No.72 of 2001. Being aggrieved and dissatisfied with aforesaid both the orders, Appeal from Order and Special Civil Application are filed. 8. Mr.R.S.Sanjanwala, learned Advocate has appeared on behalf of the appellants and the petitioner in both Appeal from Order and Special Civil Application. It is submitted that original plaintiff extinguished his right and withdrew his name from partnership vide agreement produced at Mark 112/1 and subsequently they have purchased the property in question from original defendant Nos.1 and 2 and therefore, when they were put in possession by the original land owners, the learned trial Court has materially erred in allowing the Exh.5 application in Regular Civil Suit No.196 of 2001 and dismissing the Exh.5 application in Regular Civil Suit No.72 of 2001. He has submitted that the appellants have purchased the property in question by sale deed AO/311/2007 11/19 JUDGMENT dated 01.09.2000 on payment of full consideration. It is submitted that initially original defendant Nos.1 and 2 – original owners filed written statement in favor of appellants and subsequently for whatever reason they have changed their stand and said conduct of the original land owners deserve to be considered. It is submitted that the learned trial Court has committed an error in prima-faice holding that extinguishment of right by the plaintiff and withdrawing his name from partnership and other documents are concocted. It is further submitted that as such there was suppression by the plaintiff of Regular Civil Suit No.196 of 2001 and ad-interim injunction granted by the learned trial Court below Exh.5 in Regular Civil Suit No.196 of 2001 and therefore, it is requested to allow both the Appeal from Order and Special Civil Application. 9. Appeal from Order and Special Civil Application both are opposed by Mr.P.C.Kavina, AO/311/2007 12/19 JUDGMENT learned Senior Advocate with Mr.A.B.Munshi, learned Advocate appearing on behalf of respondent No.1 – Vajubhai Somabhai Baraiya. It is submitted that execution of agreement to sale has been admitted by original defendant Nos.1 and 2 original land owners and even by appellants herein. It is submitted that agreement to sale dated 24.06.1997 was in favour of original plaintiff of Regular Civil Suit No.196 of 2001 and the appellants and one another with respect to the land transaction and there was partnership amongst themselves and with a view to defeat the right of original plaintiff, the appellants herein created forged document of extinguishing right of the plaintiff and tried to make a show that the said property is purchased by them only. It is submitted that even otherwise as such there is no sale deed at all in favour of the appellants herein and the document upon which reliance has been placed considering sale deed is not sale deed at all and same is without consideration. It is submitted that so far as the AO/311/2007 13/19 JUDGMENT alleged document with respect to relinguishing right of the original plaintiff is concerned, it is on the face of it concocted and forged one in as much as the stamp paper is dated 04.10.1999 and same is stated to have been executed in 1997. It is submitted that writing of 1997 cannot be in stamp paper of 1999. Therefore, learned trial Court has rightly allowed the application Exh.5 in Regular Civil Suit No.196 of 2001 and rightly rejected application Exh.5 in Regular Civil Suit No.72 of 2001. Therefore, it is requested to dismiss both Appeal from Order and Special Civil Application. Mr.Kavina, learned Senior Advocate has requested to consider reasoning given by the learned trial Court below Exh.5 in Regular Civil Suit No.72 of 2001. 10. Heard the learned Advocates appearing on behalf of the respective parties. 11. It appears that original defendant Nos. 1 and 2 of Regular Civil Suit No.196 of 2001 are owners of land in question and agreement to sale AO/311/2007 14/19 JUDGMENT dated 24.06.1997 came to be executed in favour of original plaintiff of Regular Civil Suit No.196 of 2001 and the appellants herein and one another i.e. defendant Nos.3,4 and 5 of Regular Civil Suit No.196 of 2001. All of them jointly agreed to purchase the land in question from defendant Nos.1 and 2 for sale consideration of Rs.17 lacs. Plaintiff of Regular Civil Suit No.196 of 2001 has filed suit for specific performance of agreement to sale. On the other hand, original defendant No.3 one of the party to the aforesaid agreement to sale and plaintiff of Regular Civil Suit No.72 of 2001, on the basis of one document dated 01.09.2000 submitted that he has purchased the said property from original owners and therefore, he has become absolute owner and therefore, he prayed for interim injunction below Exh.5 in Regular Civil Suit No.72 of 2001 filed for declaration and permanent injunction. It appears that initially appellant No.1 in Appeal from Order and plaintiff of Regular Civil Suit No.72 of 2001 and defendant Nos.3 and 4 of AO/311/2007 15/19 JUDGMENT Regular Civil Suit No.196 of 2001 disputed agreement to sale dated 24.06.1997 itself. However, subsequently it was the case on behalf of the plaintiff of Regular Civil Suit No.72 of 2001 and even submission of appellants in other proceedings that original plaintiff – respondent no.1 herein had extinguished his right by document produced at Mark 112/1 and therefore, he has no right whatsoever. Now on appreciation of documentary evidence, the learned trial Court has found that said document relingushing of his right is concocted one. This Court has also considered the document produced at Mark 112/1 with respect to alleged relinguishment of right by the plaintiff. Said document is on the stamp paper of 04.10.1999 and the contents mention that same is executed on 24.06.1997. It is mentioned in the said document that “I Vajubhai Somabhai Bariya today dated 24.06.1997 on getting amount of 25% share relieve, transfer his right with respect to land bearing Survey No.189, Block No.118 ad-measuring 1740 in favour of his partner AO/311/2007 16/19 JUDGMENT – Daveshibhai Vasrambhai Desai”. There cannot be writing of 24.06.1997 on the stamp paper of 04.10.1999. Thus, prima-faice it appears that said document relied upon by the appellants more particularly appellant No.1 with respect to alleged relinguishment of right by original plaintiff is forged and concocted and/or is not reliable and does not inspire any confidence. 12. This Court has also considered document dated 01.09.2000 upon which reliance has been placed by appellant No.1 in support of his submission and contention and the claim that he has purchased property in question from the original land owners and therefore, he has become absolute owner of the land in question. Considering said document dated 01.09.2000 first of all it cannot be said to be sale deed. At the most it can said to be agreement to sale only executed by original land owners. Even on considering said document, it does not specifically mention payment of sale AO/311/2007 17/19 JUDGMENT consideration. In clause 1, it is mentioned that the amount as determined with respect to sale consideration between first party and second party has been paid in cash. However, no where it is mentioned what amount is paid and what is sale consideration. Said document also does not inspire any confidence. As stated above, it cannot be said to be sale deed at all and therefore, on the basis of same, it cannot be said that appellant No.1 of Appeal from Order has become absolute owner on the basis of said document. 13. It is true that initially original defendant No.1 & 2 owners submitted written statement supporting case of the appellants. However, subsequently submitted affidavit Exh.77 in which they have stated that they were misled and misguided by original defendant nos.3 and 4 and there were shown document mark 112/1 and they were told that the plaintiff has extinguished his right and therefore, subsequently it came to be AO/311/2007 18/19 JUDGMENT executed. Much has been said by the learned Advocate appearing on behalf of the appellants with respect to conduct by the original defendant Nos.1 and 2 also. However, assuming that such document of 2000 on which reliance has been placed by the appellants has been executed, in that case, also as stated above, same cannot be said to be sale deed at all and at the most it can be said to be agreement to sale and same is without any consideration also. There is agreement to sale prior in time in favour of original plaintiff of Civil Suit No. 196 of 2001 and is put in possession and the learned trial Court has found that he is in possession. Under the circumstances, when it is found by the learned trial Court that appellants herein have forged document and produced concocted document and/or documents produced by them are not reliable at all, it cannot be said that the appellants have purchased the property in question and they have become absolute owner and considering the same when application Exh.5 in AO/311/2007 19/19 JUDGMENT Regular Civil Suit No.196 of 2001 is allowed and application Exh.5 in Regular Civil Suit No.72 of 2001 is dismissed, it cannot be said the learned trial Court has committed any error which calls for interference of this Court. In the facts and circumstances of the case, the learned trial Court is justified in allowing Exh.5 in Regular Civil Suit No.196 of 2001 and dismissing application Exh.5 in Regular civil Suit No.72 of 2001 which does not require any interference of this Court. 14. For the reasons stated above, both Appeal from Order and Special Civil Application deserve to be dismissed and accordingly they are dismissed. In view of dismissal of Appeal from Order, no order in Civil application. [M.R.Shah,J.] satish