AO/212/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 212 of 2007 With CIVIL APPLICATION No. 7644 of 2007 In APPEAL FROM ORDER No. 212 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? ========================================================= MOHANBHAI AMBUBHAI PATEL & 1 - Appellant(s) Versus BABUBHAI KANJIBHAI PATEL - Respondent(s) ========================================================= Appearance : MR SP MAJMUDAR for Appellant(s) : 1 - 2. MR BS BRAHMBHATT for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/08/2008 ORAL JUDGMENT Admit. Mr.B.S.Brahmbhatt, learned Advocate AO/212/2007 2/6 JUDGMENT waives service of notice of admission on behalf of the respondent – original plaintiff. With the consent of the learned Advocates appearing on behalf of the respective parties, Appeal from Order is taken up for final hearing today. 2. Present Appeal from Order under Order XLIII Rule 1(r) of the Code of Civil Procedure is filed by the appellants – original defendants of Special Civil Suit No.55 of 2007 challenging the order dated 16.05.2007 passed below Exh.5 in aforesaid Special Civil Suit No.55 of 2007 by which the learned 6th Additional Senior Civil Judge, Surat has partly allowed the application Exh.5 restraining the appellants – original defendants from transferring, conveying, selling, parting with the possession, alienating in any manner of their undivided share in the land till final disposal of the suit. 3. Respondent herein – original plaintiff has instituted Special Civil Suit No.55 of 2007 in the Court of learned Civil Judge (S.D.), Surat for specific performance of Banachit / agreement to sale / Sathakat dated 11.01.2004 contending inter- AO/212/2007 3/6 JUDGMENT alia that undivided share of the petitioner was agreed to be sold to the petitioner for sale consideration of Rs.25,50,000/- at the rate of Rs.8,50,000/- per vigha, out of which Rs.12,55,000/- were already paid to the defendants and in the said suit the plaintiff submitted Exh.5 restraining defendants from transferring, alienating their share in the property in question till final disposal of the suit and the learned trial Court partly allowed the same. Against which the appellants – original defendants have preferred present Appeal from Order. 4. Having heard Mr.Majmudar, learned Advocate for the appellants and Mr.B.S.Brahmbhatt, learned Advocate for the respondent and having gone through the impugned order passed by the learned trial Court below Exh.5 and necessary documentary evidence produced on record more particularly alleged agreement to sale / Sathakat dated 11.01.2004 and 27.01.2004, it prima-facie appears that writing dated 11.01.2004 and 27.01.2004 cannot be said to be agreement to sale / Sathakat and it can at the most said to be Banachit, which is also disputed by the AO/212/2007 4/6 JUDGMENT appellants herein. Even considering writing dated 27.01.2004 it is so stated in the said writing that after 50% of the amount is paid on 10.02.2004, further Satakhat / agreement to sale is to be executed. It is an admitted position that after writing dated 27.01.2004, there is no further Sathakat and/or agreement to sale executed between the parties. Thus there is no agreement to sale / Satakhat dated after 27.01.2004. It is also required to be noted that admittedly the land in question is in the joint names of three persons viz. Paliben, Mohanbhai and Ramabhai and admittedly there is no partition of the land in question. When there is no partition it is not certain which portion of the property / land would go in favour of the appellants. Even considering writing dated 11.01.2004 on which suit is based, it prima-facie appears to the Court that the learned trial Court has committed an error in partly allowing Exh.5 restraining the appellants from transferring their undivided share in the land in question. 5. Mr.Majmudar, learned Advocate appearing on AO/212/2007 5/6 JUDGMENT behalf of the appellants has relied upon the decision of the learned Single Judge of this Court in the case of Vishnu Ramtaji Thakore v/s. Amit Pransukhlal Patel reported in AIR 2007 Gujarat 133. In an identical set of facts, the learned Single Judge of this Court has held that interim injunction restraining the defendants from alienating suit property cannot be granted when suit property was in joint family property but only defendant No.1 has signed the so called Banachitti. Considering above, it appears that the learned trial Court has committed an error in allowing application Exh.5 which requires to be quashed and set aside. 6. For the reasons stated above, the Appeal from Order is allowed and succeeds. The impugned order dated 16.05.2007 passed below Exh.5 in Special Civil Suit No.55 of 2007 by the learned 6th Additional Senior Civil Judge, Surat is hereby quashed and set aside. At this stage, Mr.Majmudar, learned Advocate appearing on behalf of the appellants has stated under the instructions from his clients that even the appellants are ready and willing to furnish security AO/212/2007 6/6 JUDGMENT for an amount of Rs.10 lacs with the learned trial Court to the satisfaction of the learned trial Court. Statement of Mr.Majmudar, learned Advocate is recorded and the appellants are directed to act accordingly. It is made clear that aforesaid observations are only while deciding application Exh.5 and the learned trial Court to decide and dispose of the Suit in accordance with law without in any way being influenced by the present order. In view of disposal of Appeal from Order, no order in Civil Application. [M.R.Shah,J.] satish