IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No 112 of 2002 with Appeal from Order Nos. 113, 114, 115, 116, 117, 190, 191, 282, 283 and 365 of 2002 with Civil Application No.6193 of 2002 in Appeal from Order No.365 of 2002 with Civil Application No.7117 of 2002 in Appeal from Order No.282 of 2002 with Civil Application No.7118 of 2002 in Appeal from Order No.283 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgment? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SHREERANG DEVELOPERS Versus HIMMATLAL JAMNADAS MANIAR -------------------------------------------------------------- Appearance: A.O. Nos. 112, 113 and 114 of 2002. Mr.S.B. Vakil, with MR AS VAKIL, for appellant Nos. 1-13 Mr.A.J. Patel, for respondents 1 to 4 Mr.P.M.Thakkar, with Mr.N.V.Solanki, for respondent 5. A.O.Nos. 115, 116 and 117 of 2002. Mr.A.J. Patel, Advocate, for the appellants. Mr.P.M.Thakkar, with Mr.N.V.Solanki, for respondent 1. Mr.S.B. Vakil for respondents 2 to 13. A.O.Nos. 190, 191, 282, 283 and 365 of 2002. Mr.P.M.Thakkar, with Mr.N.V.Solanki, for the appellants. A.O.No.190 of 2002 Mr.A.J. Shastri for respondent No.1 Mr.S.B.Vakil for respondents 2.2 to 2.12. A.O. 191 of 2002 Mr.A.J. Shastri for respondent No.1 Mr.S.B.Vakil for respondents 2.2 to 2.12. A.O.282 of 2002 Mr.A.J. Shastri for respondent No.1 to 4 Mr.S.B.Vakil for respondents 5 to 17 A.O.283 OF 2002 Mr.A.J. Shastri for respondent No.1 to 4 Mr.S.B.Vakil for respondents 5 to 17 A.O.365 of 2002 Mr.A.J. Shastri for respondent No.1 to 4 Mr.S.B. Vakil for respondents 5 to 17 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 10/04/2003 Common C.A.V. JUDGEMENT 1. Since common points are involved in all these Appeals, with the consent of parties, all these Appeals are taken up for hearing together. So far as A.O. Nos. 190, 191, 282, 283 and 365 of 2002 are concerned, they are at the admisison stage and it is agreed that the said Appeals are also to be heard finally, along with the other Appeals, which are already admitted by this Court. Accordingly, the said Appeals are also ordered to be admitted and heard finally with the rest of the appeals. 2. There is a property, bearing Ward No.2, Nondh No.3, situated at Ring Road, Rustampura, Surat City. There was a big parcel of land, which originally belonged to one Sarguru Niyazali Shah and his four sons. There were many hutment dwellers occupying portion of the said property. The said hutment dwellers were the tenants of the original owner, Sarguru Niyazali Shah. The said original owner, Sarguru Niyazali Shah, by various sale deeds, sold away the said property, viz., 43 plots, to 22 persons, including the present plaintiffs. The said property was sold to the plaintiffs and other purchasers in October, 1983 by way of registered sale deed and accordingly, the plaintiffs became owners of the respective areas of the land in question. It is not in dispute that the said property was sold with the existing huts and 108 hutment dwellers were residing at the relevant time in the said land. Out of the said total 22 purchasers, who have purchased 43 plots, in all, in between them, 8 persons instituted Civil Suits before the Civil Judge (Senior Division), Surat, for a declaration and injunction and submitted applications Exhibit 5 for interim injunction. So far as Regular Civil Suit No.703 of 1997 is concerned, the same was filed on 27.11.1997 and its new number is Special Civil Suit No.456 of 2001. The said suit is filed by one Haribhai Balubhai Parekh as Power-of-attorney holder of Kantaben Ramchandra Parte. The case of the plaintiff in the said suit is that the plaintiff is the owner of the suit property, being the property admeasuring 127.10 sq.metres, situated at : City Survey No.2, bearing Ward No.2, Nondh No.3/11, situated at Ring Road, Rustampura, Surat City, that she purchased the said property from its original owner, Sarguru Niyazali Shah and his four sons, that she has become owner by virtue of the sale deed executed by the said original owners in her favour on 24.10.1983, that the plaintiff wanted to sell the said property and the intending purchaser, therefore, gave public notice through his Advocate Mr.Pravin P. Devmurari. The said notice was given on 22.10.1997, inviting objections. In response to the said notice, reply was given by the defendants in the newspaper on 30.10.1997 and, according to the plaintiff, on the basis of the said reply to the public notice, the plaintiff enquired from the office of the Sub Registrar, and on enquiry, it came to the notice of the plaintiff that a document of sale is executed by one Maneklal Bhagwandas Reshamwala as power-of-attorney holder of the plaintiff Kantaben Ramchandra Parte in favour of one Himmatlal Jamnadas Maniar and the sale consideration is mentioned as Rs.49,000/- in the said document. The case of the plaintiff is that the plaintiff had never given any such power-of-attorney to Maneklal Bhagwandas Reshamwala and the plaintiff had never signed any such power-of-attorney in favour of the said person. The case of the plaintiff, therefore, is that the said Maneklal Bhagwandas Reshamwala, in collusion with defendant Nos. 1 to 3, has prepared false documents and that, by virtue of the said document, the said Himmatlal Jamnadas Maniar cannot be said to have been the owner. 3. During the pendency of the suit, the plaintiff submitted an application for interim injunction at Exhibit 5. The plaintiff also submitted another application at Exhibit 51, as, during the pendency of the said suit, a caveat was submitted by one Shrirang Developers, a partnership firm, to the effect that they have purchased the suit property and, therefore, no interim order may be given without hearing them. In view of the receipt of the said caveat, the plaintiff of the said suit submitted an application for joining the said purchasers, who were subsequently joined as defendants 5 to 17 in the aforesaid suit, being Regular Civil Suit No.703 of 1997, which is now converted into Special Civil Suit No.456 of 2001. 4. So far as Regular Civil Suit No.704 of 1997 is concerned, the said suit is also filed on the same day, i.e., on 27.11.1997. The said suit was, subsequently, converted into Special Civil Suit No.457 of 2001. The said suit is filed by one Rupaliben Jayantkumar Patel. There also similar types of averments are made regarding giving of public notice by the intending purchaser of her property through the Advocate and regarding reply to the said public notice, etc. The said plaintiff also accordingly filed the said suit for a declaration and injunction and the say of the said plaintiff is also the same that she had never given any power-of-attorney to any one for transfer or sale of the property to any one. 5. So far as Regular Civil Suit No.705 of 1997 is concerned, the same was subsequently converted into Special Civil Suit No.458 of 2001, and the said suit is filed by one Hemantkumar Mohanlal Jani and the averments in the said suit are also on the same lines regarding giving of public notice by the intending purchaser of his property through the Advocate and regarding reply to the said public notice, that he had not given any such power-of-attorney to any one for selling the property and that the so-called sale deed is a forged and bogus document, and that the said Himmatlal Jamnadas Maniyar had never become owner of the said property by virtue of the said fraudulent sale deed, etc. 6. So far as Regular Civil Suit No.721 of 1997 is concerned, the said suit is filed by one Amul Shashikant Parekh. The said suit is now converted into Special Civil Suit No.307 of 2001. The said suit was filed on 9.12.1997. 7. So far as Regular Civil Suit No.722 of 1997 concerned, the same is now converted into Special Civil Suit No.308 of 2001. The said suit is filed by one Ashish Harilal Parekh. The said suit is filed on 9.12.1997. 8. So far as Regular Civil Suit No.723 of 1997 is concerned, the same is filed by one Maheshkumar Shantilal Agarbattiwala. The said suit is now converted into Special Civil Suit No.306 of 2001. The said suit is also filed on 9.12.1997. 9. So far as Regular Civil Suit No.171 of 1999 is concerned, the said suit is filed by Mayurkumar Haribhai Parekh. The said suit is now converted into Special Civil Suit No.408 of 2001 and the said suit is filed by one Mayurkumar Haribhai Parekh. 10. So far as Regular Civil Suit No.172 of 1999 is concerned, the said suit is filed by one Mayurkumar Haribhai Parekh. The said suit is now converted into Special Civil Suit No.409 of 2001. 11. In all these suits, the stand of the plaintiffs is same to the effect that they have not given any power-of-attorney and after purchasing the suit property, they have not transferred or sold it to any one. The case of the plaintiffs in each of the suits is that having come to know about the stand taken by the defendants in response to the public notice issued by the Advocate of the intending purchasers, on whose behalf public advertisement was given, the plaintiffs started making enquiry and, ultimately, they came to know that on the basis of some fabricated and false power-of-attorneys, sale deeds have been executed, by which their property is conveyed on the basis of the aforeaid forged documents. Accordingly, in all these suits, the plaintiffs submitted an application for interim injunction, restraining the defendants from transferring or alienating the suit property. As stated earlier, since the original defendants transferred the suit property during the pendency of the suit, the purchasers have also been joined subsequently in the suit and injunction is also prayed against the purchasers. 12. The original defendants of the aforeaid suits appeared in the suits and resisted the suits as well as the applications for interim injunction. The allegations of the plaintiffs are denied by the defendants in toto. 13. The defendants resisted the said suits on various grounds. It is the say of the defendants that the property was divided into various plots. On 20.2.1987, the plaintiff executed the power-of-attorney in favour of defendant, Maneklal Bhagwaandas Reshamwala and that the consideration of Rs.49,000/- was also paid to the plaintiff. It is the say of the defendants that on 9.12.1994, a registered sale deed of the said plot was executed in favour of Himmatlal Jamnadas Maniar, i.e. defendant No.1, by the power-of-attorney holder of the plaintiff. It is also the say of the defendants that the plaintiff has got no right, title or interest over the suit property from the date of execution of the sale deed, but because of the dispute between Haribhai Balubhai Parekh and Maneklal Bhagwandas Reshamwala, at the instance of the said Haribhai Parekh, the present suit is filed by the plaintiff, which is not tenable in law. It is also the say of the defendant that the suit property is already sold to Himmatlal Jamnadas Maniar by way of registered sale deed and, therefore, the plaintiffs have absolutely no right, title or interest over the same. According to the defendants, since the plaintiffs want to knock out more money, the said suits are filed. It is also the say of the defendants that the suits are also hopelessly time-barred as the said suits were required to be filed within a period of three years from the aforesaid sale deed executed in favour of said Himmatlal Jamnadas Maniar. Since in all these suits, the say of the defendants is more or less common, it is not necessary to state the facts of the written statements of each of the said suits, as, ultimately, in substance, the case of the defendants is that the plaintiffs have no right, title or interest and that the document executed in favour of Himmatlal Maniar is absolutely legal and valid and that the suits of the plaintiffs are nothing but an aforethought and, therefore, it is prayed that on the same lines, interim applications at Exhibit 5 are also required to be rejected. 14. Out of the aforesaid total eight suits, some were placed for hearing of the injunction application before one Civil Judge and some suits were placed before another Civil Judge. So far as Special Civil Suit Nos. 456, 457 and 458 of 2001 are concerned, the learned Civil Judge (Senior Division), Surat, by the impugned order, allowed the application Exhibit 5 as well as the applications Exhibits 51, 55, and 58, by which injunction granted earlier at an ad interim stage was made absolute till the disposal of the suit. 15. Initially, in the said suits, the trial court, by ad interim order dated 27.11.1997, restrained the defendants from transferring the suit property in any manner to any one and, ultimately, by the final order, the learned trial Judge allowed the application Exhibit 5 and the trial court has observed in the order that the ad interim injunction granted below Exhibit 5 and extended from time to time is made absolute till the final disposal of the suits. The trial court also allowed other interim Applications, by which the purchaser was also restrained from putting up any construction over the disputed property. 16. So far as Appeal from Order No.112 of 2002 is concerned, the same is filed by the original defendants 5 to 17 of Special Civil Suit No.458 of 2001. So far as Appeal from Order No.113 of 2002 is concerned, the same is filed by the subsequent purchasers, i.e. original defendants 5 to 17 of Special Civil Suit No.457 of 2001. So far as Appeal from Order No.114 of 2001 is concerned, the same is also filed by the subsequent purchasers, viz., defendants 5 to 17, challenging the order of the trial court passed below Exhibits 5 and 51 in Special Civil Suit No.456 of 2001. So far as Appeal from Order No.115 of 2002 is concerned, the said A.O. is filed by the original defendants 1 to 4 of Special Civil Suit No.457 of 2001, challenging the order by which the order below Exhibit 5 is confirmed by the trial court by the impugned order. So far as Appeal from Order No.116 of 2002 is concerned, the same is also filed by the original defendants 1 to 4 of Special Civil Suit No.458 of 2001, challenging the order by which the interim injunction below Exhibits 5 and 55 is made absolute by the trial court. So far as Appeal from Order No.117 of 2002 is concerned, the same is also filed by defendants 1 to 4, challenging the order passed below Exhibits 5 and 51 in Special Civil Suit No.456 of 2001. Accordingly, the aforesaid six Appeals, viz., AO Nos. 112, 113, 114, 115, 116 and 117 of 2002, are preferred by original defendants 1 to 4 as well as by the original defendants 5 to 17 of Special Civil Suit Nos. 456, 457 and 458 of 2001, aggrieved by the order passed below Exhibits 5, 51 and 55. Accordingly, both the original defendants as well as the subsequently joined defendants, who are the subsequent purchasers, have challenged the order of the trial court by way of filing these six Appeals. So far as A.Os. 190, 191, 282, 283 and 365 of 2002 are concerned, the said appeals are preferred by the original plaintiffs. So far as the interim applications in the aforesaid suits are concerned, the applications preferred by the plaintiffs in the suits, viz., Special Civil Suits Nos. 306, 307, 308, 408 and 409 of 2001, were heard by another Civil Judge and by the impugned order, the learned trial Judge rejected the application for interim injunction on various grounds. Being aggrieved by the impugned order of the trial court, by which Exhibit 5 application is rejected and injunction is refused in their favour, the aforesaid plaintiffs of the said Special Civil Suits have preferred these five A.Os. Accordingly, out of the total eight suits, referred hereinabove, in three suits, injunction was granted by the trial court against the original defendants as well as against the purchasers and in five suits, the trial Judge has rejected application Exhibit 5, against which the aforesaid A.Os. are filed by the original plaintiffs. So far as these five appeals of the original plaintiffs are concerned, the same were pending at an admisison stage and it was placed for admisison at a later point of time. However, Advocates of both the sides agreed that since common points of facts and law are involved in all these appeals, all the Appeals can be heard and decided together, and, accordingly, as stated earlier, this set of Appeals are also heard finally, with the consent of the parties. 17. So far as A.Os. 190, 191, 282, 283 and 365 of 2002 are concerned, Mr.P.M.Thakkar, learned Advocate, is appearing for Mr.N.V. Solanki, and he submitted that since there is a triable issue involved in the matters and when there is a prima facie case in favour of these plaintiffs, and especially when in similar type of matters, the other trial Judge has already granted injunction, the plaintiffs are also required to be protected by way of interim injunction during the pendency of the suit. Mr.Thakkar further submitted that if the property is allowed to be sold during the pendency of the suit, the plaintiffs will suffer immensely. Mr.Thakkar further submitted that the plaintiffs have never executed any document in the nature of power-of-attorney and, therefore, the plaintiffs are totally ignorant and, they were surprised when they read the reply to the public notice given by the Advocate of the intending purchaser and in response to the same, the defendants disclosed the fact about the so-called sale deed. He submitted that all the so-called documents, viz., the power-of-attorney, purported to have been given by the plaintiffs are all forged documents and that the sale deed is also bogus and fraudulent and that the same is also not binding on the plaintiffs. Mr.Thakkar further submitted that even though there was an injunction granted at least in some of the suits, yet, the defendants, in violation of the injunction, transferred the property and, therefore, the aforesaid purchasers are required to be restrained now from making further construction and transferring and alienating the property to any one during the pendency of the suit. Mr.Thakkar submitted that since the plaintiffs were not aware about the transactions and since all these transactions are fraudulent, the question of limitation would not arise, as, from the date of knowledge, they filed the suits within the period of limitation. Mr.Thakkar also submitted that the defendants may be directed to give security during the pendency of the suit as regards the respective shares of the plaintiffs so that if the suits are decreed, the plaintiffs can recover the monetary claim for their respective properties. It is also submitted that even when the suit was filed, huts were already in existence and hutment dwellers were occupying the property. He also submitted that the suit property was never transferred in favour of the defendants. In A.O. Nos.365, 282 and 283 of 2002, Civil Applications for additional evidence, being Civil Application Nos. 6193, 7117 and 7118 of 2002, have been fled, by which the plaintiffs wanted to place on record certain documentary evidence, which was not produced before the trial court. Mr.Thakkar also further submitted that after reading the reply of the defendants by way of reply to the public notice, the plaintiffs tried to enquire about the matter and, therefore, after getting appropriate material and collecting the data, the suits are filed and, therefore, there is no delay in filing the suit. Mr.Thakkar submitted that since the plaintiffs have never executed any power-of-attorney in favour of defendant No.4 and that since the defendants have created false documents and executed sale deeds in favour of defendant No.1, the injunction prayed for is required to be granted during the pendency of the suit. Mr.Thakkar has also further argued that the manner in which the stamp papers of the same serial number etc., are purchased, creates doubt about the genuineness. He has also emphasized upon certain erasures and overlappings in the documents. Mr.Thakkar has also offered the comments about the affidavit filed by Advocate Mr.Dilipbhai Kapadia, who has filed the same in the suit and in his affidavit, he has given the description as to how he prepared the power-of-attorneys. He also submitted that it is not possible to believe that the defendants may not even ask for any receipt after making the payment of consideration to the plaintiffs. He also submitted that it is not possible to believe that the entire consideration amount is paid in cash. He, therefore, submitted that the appeals filed by the original plaintiffs should be allowed and the appeals filed by the defendants should be dismissed. Mr.Thakkar submitted that since the purchasers had full knowledge about the fact that suits are pending and despite that, they decided to purchase the property, they should not be permitted to develop the property any further, because, they have purchased the property with open eyes and that in some of the suits, even though injunction was in force, the purchasers in a high handed and arbitrary manner, continued with the construction. He further submitted that no further construction should be permitted in any manner. Mr.Thakkar also submitted that it cannot be said that there is no prima facie case in favour of the plaintiffs and, ultimately, the plaintiffs will be able to prove their case after adducing appropriate evidence before the trial court and, therefore, the defendants are required to be restrained from making further construction. Mr.Thakkar also relied upon certain affidavits, which are submitted on behalf of the plaintiffs in support of their Application Exhibit 5. By submitting Civil Application No.6193 of 2002 in A.O. No.365 of 2002, documentary evidence in the nature of report of handwriting expert, one Mr.K.R.S. Pillai, as well as affidavit of one Mr.Somabhai Patel, Deputy Mamlatdar and Executive Magistrate, Surat, is sought to be produced on record. So far as the affidavit of the said Magistrate is concerned, he has stated in the affidavit that he has never attested the powers-of-attorney nor is there any stamp paper of his office and that somebody seems to have forged the rubber stamp of his office. On behalf of the original plaintiff of A.O. No.365 of 2002, it is prayed that the Civil Application for additional evidence may be allowed and the said documents may be taken on record. Mr.Thakkar also submitted that defendants have not produced any documentary evidence to show that they have legal right or title over the property. 18. Mr.S.B. Vakil, learned Advocate, who is appearing in A.O. Nos. 112, 113, and 114 of 2002, submitted that there is absolutely no prima facie case in favour of the plaintiffs and, therefore, no injunction can be granted in favour of the plaintiffs. Mr.Vakil submitted that the suits filed by the plaintiffs are all hopelessly time-barred and that, in order to bring the suits within the period of limitation, so-called public advertisement is issued by the intending purchasers. He submitted that there is nothing like "intending purchasers" and nowhere names of such intending purchasers are disclosed at any point of time. Mr.Vakil also further submitted that in order to bring the suit within the period of limitation, the plaintiffs have given the advertisement in the name of the intending purchasers. Mr.Vakil also submitted that the plaintiffs are interested in knocking