Gujarat High Court

Ranjit Dhirajlal Desai vs Nitaben D/O Mehmoon Dhirajlal ... on 20 March, 2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/APPEAL FROM ORDER NO. 12 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 12 of 2023
With
R/APPEAL FROM ORDER NO. 13 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 13 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 or any order made thereunder ?

==========================================================
RANJIT DHIRAJLAL DESAI & ORS.

Versus
NITABEN D/O MEHMOON DHIRAJLAL GULABBHAI DESAI W/O NITINBHAI
THAKORBHAI DESAI & ORS.

==========================================================
Appearance:

APPEAL FROM ORDER NO.12 OF 2023:

for the Appellant(s) No. 4.3

DECEASED LITIGANT for the Appellant(s) No. 4

MR BS PATEL, SENIOR ADVOCATE WITH MR CHIRAG B PATEL(3679) for
the Appellant(s) No. 1,2,3,4.1,4.2,4.4
MR MEHUL S SHAH, SENIOR ADVOCATE WITH MR MANAN A
SHAH(5412) for the Respondent(s) No. 1,2

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APPEAL FROM ORDER NO.13 OF 2023:

MR MIHIR THAKORE, SENIOR ADVOCATE WITH MS TRUSHA PATEL,
SENIOR ADVOCATE WITH MR NISARG RAVAL for the Appellants.
MR MEHUL S SHAH, SENIOR ADVOCATE WITH MR MANAN A
SHAH(5412) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 20/03/2024

ORDER CAV JUDGMENT

1. These Appeals From Orders are preferred under

Order 43 Rule 1(r)
of the Code of Civil Procedure
, 1908

(`
CPC
' for short). Appeal From Order no.12 of 2023 is filed

by the original defendant nos.2 to 4 being aggrieved by the

order dated 12.1.2023 passed below Exh.5 in SCS No.16 of

2022 (Old RCS No.98 of 2020) by the learned Principal

Senior Civil Judge, Valsad, whereby the applicant Exh.5

preferred by the original plaintiffs seeking injunction against

the defendants came to be allowed. Being aggrieved by the

very same order, defendant no.5 has filed the Appeal From

Order No.13 of 2023.

2. As both these appeals are arising out of the same

order, the facts are same and the arguments advanced are

also same, they were ordered to be tagged together by a

previous order dated 1.2.2023. Accordingly, they are heard

together and disposed of by this common judgment. The

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parties are referred to hereinafter by their original status of

plaintiffs and defendants for the sake of convenience.

3. The brief facts leading to filing of these appeals,

as stated in the memo of appeals are such that the

opponents-original plaintiffs filed Special Civil Suit No.16 of

2022 (Old RCS No.98 of 2020) for partition, declaration,

permanent injunction and also for accounts against the

defendant nos.1 to 4 (who are the brothers of the plaintiffs)

and against the defendant no.5 who is subsequent purchaser;

that on 10.5.2019 and 22.1.2020, the appellants herein

entered into an agreement to sale for the suit property with

defendant no.5, originally the said property was an

agricultural land which was subsequently converted into non-

agriculture land and at present, the defendant no.5 is putting

up the construction over the said property. It is averred that

along with the said suit, application Exh.5 was also preferred

by the plaintiffs to which the defendants opposed and after

hearing the said application, the learned trial Court has

allowed the said application at Exh.5 vide order dated

12.1.2023. The defendant nos.1 to 4 and defendant no.5 gave

applications at Exh.78 and 79 respectively, praying to stay

the said order to approach the higher forum, which was

allowed and the order passed below Exh.5 was stayed for 20

days.

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These appeals from order were filed and when listed, notice

was issued and the said order of staying the impugned order

passed below Exh.5 application is continued from time to

time by various orders passed by this Court.

4. Heard learned advocates for the parties.

4.1 Learned senior advocate Mr.Mihir Thakore with

learned senior advocate Ms.Trusha Patel with learned

advocate Mr.Nisarg Raval for the appellants of Appeal From

Order no.13 of 2023 has submitted that the dispute is with

regard to the land bearing Survey No.130/2 (Block No.523)

admeasuring 11,176 sq.mtrs of village Atakpardi, Taluka and

District Valsad (hereinafter referred to the `the disputed land'

for the sake of brevity); that the plaintiffs are sisters of

defendants nos.1-4; that the impugned suit is filed by the

plaintiffs contending that the disputed land along with other

properties mentioned in paragraph 1 of the plaint were

ancestral properties and they have share in the same; that a

notarized undertaking dated 23.4.2018 was executed by

plaintiffs and it was agreed that the defendants nos.1 to 4

would give some amount to the sisters and upon receipt of

the same, the sisters would relinquish their rights qua the

disputed land; however, no such amount is received by them

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and therefore the registered relinquishment deed dated

7.5.2018 executed by them was under undue influence; that

the Mutation entry which was posted pursuant to the

relinquishment deed was also posted and certified without

following due process of law and therefore the registered

agreements to sell dated 10.5.2019 and 22.1.2020 executed by

the defendants no.1 to 4 are also illegal and not binding to

them. He submitted that with the said pleadings, the

plaintiffs had filed the said suit.

4.2 Learned senior advocate Mr.Thakore submitted that

as the plaintiffs doubted the genuineness of agreement to

sale on the ground that the defendants had shown very high

sell price, the defendant no.5 had shown readiness and

willingness to deposit the market price of alleged share of

the plaintiffs at Jantri price before the Court; that the

defendant nos.1 to 4 had handed over the possession to

defendant no.5 and the said defendant had floated a project

in it. He submitted that from the recording obtained from

the office of sub-registrar, it clearly establishes that the

plaintiffs had voluntarily, with full understanding, in presence

of their husband executed relinquishment deed before the

sub-registrar. Referring to this, learned senior advocate

Mr.Thakore submitted that
Section 50
of the Registration Act

says that registered document prevails over unregistered

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document and
Article 49
Schedule 1 of the Gujarat Stamp

Act specifies that stamp of only Rs.100 is required to be

affixed while registration. The sub-registrar's endorsement is a

proof of facts stated in the deed.

4.3 Learned senior advocate Mr.Thakore submits that

the plaintiffs claim to be in possession of the disputed

property but they did not give any application to draw

panchanama and when the defendant no.5 gave such

application, the same was objected by the plaintiffs. The

panchanama shows that the construction is carried out by

defendant no.5. He submitted that the possession is handed

over by the defendant nos.1 to 4 to defendant no.5, which is

not disputed and there is no reason for the learned trial

Court to disbelieve handing over the possession only on the

ground that the Agreement to sell does not reflect so. He

submitted that there is no prohibition to hand over the

possession after execution of agreement to sell, if the parties

so wished to and even the quantum of compensation paid

has also no relevance when it comes to handing over the

possession, particularly, when the defendant nos.1 to 4 did

not so dispute.

4.4 Learned senior advocate Mr.Thakore submitted

with regard to the Mutation Entry that the notices under

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Section 135D of the Bombay Land Revenue Code were issued,

served, acknowledgment receipts were duly signed and then

only the entry was certified, which entry is not challenged by

the plaintiffs before the revenue authorities and hence, the

point raised in the suit regarding this could not have been

considered by the learned trial Court while granting the

impugned application at Exh.5.

4.5 Learned senior advocate Mr.Thakore has further

submitted that equity is created in favour of the defendant

no.5, that too, after one year of execution of registered

relinquishment deed and the appellant has put up huge

construction and has spent huge amount.

4.6 Learned senior advocate Mr.Thakore has submitted

that the defendant no.5 is a bonafide purchaser who has paid

huge amount pursuant to the agreement to sale and also

when the registered relinquishment deed is executed by the

objectors- original plaintiffs, such filing of the said suit is

nothing but an arm twisting technique. He has further

submitted that the said agreement to sale is executed in

favour of the present appellant. The Deed of Relinquishment

is also executed by the plaintiffs whereby at the time of

registration, the plaintiffs have admitted before the sub-

registrar that the consideration is received by them and

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therefore the present suit proceeding is filed with a view to

harass the defendant no.5, that too after a long delay of 1 ½

years after arising of such alleged cause of action, for

snatching more money. He submitted that the registered deed

of relinquishment is executed on 10.5.2019 and the suit for

its cancellation is filed after 17 months and the learned trial

Court ought to have considered that even if the suit is filed

within limitation, the injunction is not to be granted if there

is delay in approaching the Court.

4.7 Learned senior advocate Mr.Thakore has drawn my

attention towards the NA permission and the agreement to

sale which is executed in favour of the defendant no.5 and

submitted that at no point of time, the plaintiffs have raised

any objection. Not only that even the entries in revenue

record is also effected and the notices under Section 135D

were also served on the plaintiffs and at that point of time

also, they have not raised any objection and therefore the

plaintiffs cannot be permitted to take undue advantage of the

situation. He, therefore, submitted that the factor of prima

facie case and balance of convenience is also in the favour of

the defendant no.5 and not the plaintiffs.

4.8 Learned senior advocate Mr.Thakore has submitted

that considering all these factors, the Court has to allow this

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appeal and interfere with the impugned order by exercising

powers under Order 43 Rule 1 read with
Section 104
of the

CPC as prima facie it is made out that relinquishment deed

dated 7.5.2018 is registered document and the Court cannot

ignore such registered document.

4.9 In support of his submissions, learned senior

advocate Mr.Thakore has relied on the following citations:

(1) Simiben @ Chimiben D/o Naranbhai Kalabhai & Anr.,

reported in 2010(1) GLR 663

(2) Pramukhkrupa Enterprise Through Managing Partners V/s

Kunverben Chaturdas Patel Thro poa Mahendrabhai C Patel,

reported in 2015(1) GLR 169

(3) Veetrag Holdings Private Limited V/s Gujarat State

Textile Corporation Limited reported in 1996(3) GLR 536

(4) Rattan Singh & Ors. V/s Nirman Gill & Ors. Etc. in

Civil Appeal Nos.3681-3681 of 2020

(5) Prem Singh V/s Birbal reported in AIR 2006 SC 3608

(6) Jamila Begum (D) Thr.Lrs. V/s Shami Mohd.(D) Thr.Lrs.

Reported in AIR 2019 SC 72.

(7) Ranganayakamma And Another V/s K.S.Prakash (Dead) by

Lrs. And others reported in 2008(15) SCC 673

(8) Kuppuswami Chettiar V/s Arumugam Chettiar and

Another reported in AIR 1967 SC 1395

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(9) Thayyil Mammo And Another V/s Kottiath Ranunni And

others, reported in AIR 1966 SC 337.

5. Learned senior advocate Mr. Patel appearing for

original defendants no.1 to 4 who are the appellants in the

Appeal No.12 of 2023 submits that he is supporting the

defendant no.5-appellant of Appeal From Order 13 of 2023 for

whom learned senior advocate Mr.Thakore is appearing. He

submits that the defendant no.5 is the person to whom the

defendant nos.1 to 4 have sold the property in question.

5.1 Learned senior advocate Mr.Thakore has submitted

that the defendant no.5 is willing to pay the entire amount

of the agreed by way of agreement before the court and also

has submitted that even if the claim of the plaintiffs is to be

considered, then also, there are several parcels of the land

where there are no sale transactions taken place and are

still available for the plaintiffs for their share and therefore

the plaintiffs have no case on merits. Learned senior

advocate Mr.Patel has, by referring to the said contention

raised by learned senior advocate Mr.Thakore, further added

that the relinquishment deed is dated 7.5.2018 which was

registered and thereafter after almost a period of 1 ½ years,

the plaintiffs have preferred the suit, therefore, the delay

itself is required to be considered for not granting interim

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injunction against the defendants.

5.2 Learned senior advocate Mr.Patel has further

submitted, by drawing attention towards the notice issued

under Section 135D before the entry was certified which

clearly indicates that the notice is served on the plaintiffs,

and submitted that thereafter also, the plaintiffs have

remained silent and therefore the sudden waking up after a

period of more than 1 ½ years, clearly indicates the intention

of the plaintiffs to snatch more money under the guise of

such litigation from the subsequent purchaser. He has further

submitted that if the plaintiffs had no objection at the

relevant point of time, they cannot rely on merely terms of

MOU without referring to the subsequent document i.e.

relinquishment deed executed by the plaintiffs. If the

plaintiffs would not have received any amount towards the

sale consideration or their share, then naturally no prudent

man will sign the document and that too by stating that the

consideration is received by them. That such relinquishment

deed is required to be considered which is a subsequent one

and registered document and therefore the rights of the

parties are now crystallized in view of the above mentioned

documents and the plaintiffs have no locus to file the suit

and pray for the prayers made in the suit. He, therefore,

prays to allow this appeal from order by interfering with the

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impugned order.

5.3 In support of his submission for delay and laches,

learned senior advocate Mr.Patel has relied on the judgment

in the case of Harshadkumar Kantilal Bhalodwala and Anr.V/

s Ishwarbhai Chandubhai Patel and Ors, reported in 2010(2)
GLR 1041 by submitting that such delay, laches is fatal for
such injunction and more particularly, when the plaintiffs can

be compensated in terms of money, no such injunction can be

granted.

6. Per contra, learned senior advocate Mr.Shah for
the original plaintiffs in both the appeals has opposed these

appeals from order. He submitted that the suit is filed by

the plaintiffs for partition, separate, possession, cancellation of

relinquishment deed, two agreements to sale, permanent

injunction and other ancillary reliefs on the specific case that

the plaintiffs are lineal descendants of Dhirajlal Gulabbhai

and they are having 1/3rd share in all the disputed

properties and they also claim to be in possession of the

property as co-sharers. He submitted that with regard to the

properties mentioned in paragraph 1A, no arguments are

advanced as the original defendant nos.1 to 4 have made a

statement to maintain status-quo qua the same.

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6.1 He submitted that as regards the property

mentioned in paragraph 1B, on 23.4.2018, an undertaking

was entered into between the plaintiffs and defendant nos.1

to 4 that they will pay certain amounts to the plaintiffs and

on such payment, they will relinquish their rights. He

submitted that there is no averment made by the defendants

in the written statement that any amount has been paid

towards sale consideration to the plaintiffs. He submitted that

the agreement was dated 23.4.2018 and they were called on

7.5.2018 to execute a registered deed so as to put the

undertaking in executable format; that as per the instructions

given by the defendants, they answered in the affirmative

before the Sub-Registrar that they have received the amount

of consideration, though the document was titled as

`relinquishment deed without consideration'. He submitted

that in law the relinquishment deed cannot be looked into

for evidence as the same is directly in contravention of

Section 34
of the Gujarat Stamp Act, 1958. He submitted

that the Hon'ble Apex Court has held that such a

release/relinquishment deed is nothing but a gift deed and as

per the Gujarat Stamp Act it has to be properly stamped to

consider the same into evidence, whereas in the present case,

the deed is executed on a stamp paper of Rs.100/- and

therefore the same has no evidentiary value and it is not

admissible in evidence. He submitted that the specific

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pleadings in the plaint as regard to how the plaintiffs have

been duped by coercion and pressure can always be

considered for setting aside the relinquishment deed after

full-fledged trial.

6.2 As regards service of Notice under Section 135 of

the Bombay Land Revenue Code, learned senior advocate

Mr.Shah has submitted that it is specifically stated that the

same was served on a third party before deleting the names

of plaintiffs vide the mutation entry in pursuance of

purported released deed and it is not coming on the record

as to who was that lady on whom the notice was served and

as the names of the plaintiffs were deleted from the revenue

records, the plaintiffs were not aware about any subsequent

entries including entries in respect of development permission,

NA permission etc. and came to know about the same only

after 6.10.2020.

6.3 As regards the agreement to sale executed by the

defendant nos.1 to 4 in favour of defendant no.5, learned

senior advocate Mr.Shah has submitted that the registered

agreement to sale is executed by the defendant nos.1 to 3 in

favour of the defendant no.5 on 10.5.2019 whereas the

registered agreement to sale is executed by defendant no.4 in

favour of defendant no.5 on 22.10.2020 i.e. after a period of

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17 months. As regards giving away the possession to

defendant no.5, he submitted that it is unbelievable fact that

the defendant nos.1 to 4 have handed over the entire

possession of property to the agreements to sale holders by

accepting a meagre amount. He added that there is no

document which shows that possession was handed over to

the defendant no.5-purchaser qua one of the properties and

in fact, there is a specific condition in the agreement to sale

that possession shall not be handed over until the sale deed

is executed.

6.4 Learned senior advocate Mr.Shah, by referring to

Section 54
of the Transfer of Property Act, submits that the

agreement to sale by itself does not create any interest in or

charge on such property except the right of executing sale

deed on that basis. The only right created in favour of the

agreement to sale holder is to pray for specific performance

of said agreement to sale. He submitted that no suit for

specific performance has been filed by the defendant no.5;

that the entire construction put up by the defendant no.5 is

made at their own risk and peril, as is stated by defendant

no.5 before the learned lower court, and therefore now they

cannot claim any equity before this Court for the construction

made during the pendency of the suit. He submitted that the

learned trial Court has rightly passed the order of status-quo

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so that the property is preserved and not wasted away and

therefore, the impugned order is appropriate and need not be

interfered with. He, therefore, prayed to dismiss these appeals

from orders.

6.5 In support of his submissions, learned senior

advocate Mr.Shah has relied on the following citations:

(1) Kuppuswami Chettiar V/s Arumugam Chettiar and

Another reported in AIR 1967 SC 1395, paragraph 4.

(2) Venigalla Koteswaramma V/s Malampati Suryamba and

Others, reported in 2021 (4) SCC 246, paragraph 40

(3) Wander Ltd. And Anr. V/s Antox India Pvt.Ltd. Reported

in 1990 Supp SCC 727

(4) Skyline Education Institute (Pvt.) Ltd. V/s S.L.Vaswani

and Anr. Reported in AIR 2010 SC 3221

(5) Maharwal Khewaji Trust (Regd.) Faridkot V/s Baldev

Dass, reported in AIR 2005 SC 104

(6) Dev Prakash and Anr. V/s Indra and Ors., reported in

AIR 2017 SC 3608

(7) Bina Murlidhar Hemdev V/s Kanhaiyalal Lokram Hemdev

reported in 1999(3) Scale 730

7. Heard learned advocates for the parties, perused

the impugned order and considered the material produced on

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record.

8. The relevant provisions which are required to be

referred to for the purpose of deciding these appeals are as

under:

"
Section 54
of the Transfer of Property reads as under:

54. "Sale" defined.--"Sale" is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-

promised.

Sale how made.--Such transfer, in the case of tangible
immoveable property of the value of one hundred rupees and
upwards, or in the case of a reversion or other intangible
thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less
than one hundred rupees, such transfer may be made either
by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when
the seller places the buyer, or such person as he directs, in
possession of the property.

Contract for sale.--A contract for the sale of immoveable
property is a contract that a sale of such property shall
take place on terms settled between the parties. It does not,
of itself, create any interest in or charge on such property.

Section 22
of the Hindu Succession Act which reads as
under:

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22. Preferential right to acquire property in certain cases.--

(1)Where, after the commencement of this Act, an interest in
any immovable property of an intestate, or in any business
carried on by him or her, whether solely or in conjunction
with others, devolves upon two or more heirs specified in
class I of the Schedule, and any one of such heirs proposes
to transfer his or her interest in the property or business,
the other heirs shall have a preferential right to acquire the
interest proposed to be transferred.

(2)The consideration for which any interest in the property
of the deceased may be transferred under this section shall,
in the absence of any agreement between the parties, be
determined by the court on application being made to it in
this behalf, and if any person proposing to acquire the
interest is not willing to acquire it for the consideration so
determined, such person shall be liable to pay all costs of or
incident to the application.

(3)If there are two or more heirs specified in class I of the
Schedule proposing to acquire any interest under this
section, that heir who offers the highest consideration for
the transfer shall be preferred.Explanation.--In this section,
"court" means the court within the limits of whose
jurisdiction the immovable property is situate or the
business is carried on, and includes any other court which
the State Government may, by notification in the Official
Gazette, specify in this behalf."

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Section 34 of the Gujarat Stamps Act which reads as under:

34. Instruments not duly stamped in admissible in evidence
etc.-

No instrument chargeable with duty[(not being an
instrument referred to in sub-section (1) of
section
32A
),]shall be admitted in evidence for any purpose by any
person having by law or consent of parties authority to
receive evidence, or shall be acted upon, registered or
authenticated by any such person or by any public officer
unless such instrument is duly stamped :

Provided that-

(a) any such instrument not being an instrument chargeable
with a duty of twenty naye paise and less shall, subject to
all just exceptions, be admitted in evidence on payment of
the duty with which the same is chargeable, or in the case
of an instrument insufficiently stamped, of the amount
required to make up such duty, together with a penalty of
five rupees, or, when ten times the amount of the proper
duty or deficient portion thereof exceeds five rupees, of a
sum equal to ten times such duty or portion;

(b) where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any one
of the letters bears the proper stamp, the contract or
agreement shall be deemed to be duly stamped;

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(c) nothing herein contained shall prevent the admission of
any instrument in evidence in any proceeding in a Criminal
Court, other then a proceeding under Chapter XII or
Chapter XXXVI of the
Code of Criminal Procedure
, 1898 (V
of 1898);

(d) nothing herein contained shall prevent the admission of
any instrument in any Court when such instrument has
been executed by or on behalf of the Government or where
it bears the certificate of the Collector as provided by

section 32
or any other provision of this Act.

Section 135-D of the Gujarat Land Revenue Code reads as under:

135D. Register of mutations and register of disputed cases.

[(1) The village accountant shall enter in a register of
mutations every report made to him under section 135C or
any intimation of acquisition or transfer of any right of the
kind mentioned in section 135C received from the
Mamlatdar or a Court of Law.]
(2) Whenever a village accountant makes an entry in the
register of mutations he shall at the same time post up a
complete copy of the entry in a conspicuous place in the
chavdi, and shall give written intimation to all persons
appearing from the record of rights or register of mutations
to be interested in the mutation, and to any other person
whom he has reason to believe to be interested therein.

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(3) Should any objection to any entry made under sub-
section (1) in the register of mutations be made [***] in
writing to the village accountant, it shall be the duty of the
village accountant to enter the particulars of the objection in
a register of disputed cases [and to give a written
acknowledgement of the receipt of such objection to the
person making it.]

(4) Orders disposing of objections entered in the register of
disputed cases shall be recorded in the register of mutations
by such officers and in such manner as may be prescribed
by rules made by the [ [State] Government] in this behalf.

(5) The transfer of entries from the register of mutations to
the record of rights shall be effected subject to such rules
as may be made by the [[State] Government] in this behalf:

provided that an entry in the register of mutations shall not
be transferred to the record of rights until such entry has
been duly certified.

(6) Entries in register of mutations how to be certified. -

Entries in the register of mutations shall be tested and if
found correct or after correction, as the case may be, shall
be certified by a revenue officer of rank not lower than that
of a Mamlatdars' first Karkun.

(7) Tenancies. - The provisions of this section shall apply in
respect of perpetual tenancies and also in respect of any
tenancies mentioned in a notification under subsection (2) of
section 135-B, but the provisions of this section shall not

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apply in respect of other tenancies, which shall be entered
in a register of tenancies, in such manner and under such
procedure as the [[State] Government] may prescribe by
rules made in this behalf.

Sections 49
and
of the Registration Act read as under:

49. Effect of non-registration of documents required to be
registered.--

No document required by
section 17
[or by any provision
of the
Transfer of Property Act, 1882
(4 of 1882)], to be
registered shall-- (a) affect any immovable property
comprised therein, or (b) confer any power to adopt, or (c)
be received as evidence of any transaction affecting such
property or conferring such power, unless it has been
registered: [Provided that an unregistered document affecting
immovable property and required by this Act or the
Transfer
of Property Act, 1882
(4 of 1882), to be registered may be
received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act,
1877 (3 of 1877) 2 , 3 *** or as evidence of any collateral
transaction not required to be effected by registered
instrument.]

50. Certain registered documents relating to land to take
effect against unregistered documents.--

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(1) Every document of the kinds mentioned in clauses (a),

(b), (c) and (d) of
section 17
, sub-section (1), and clauses (a)
and (b) of
section 18
, shall, if duly registered, take effect as
regards the property comprised therein, against every
unregistered document relating to the same property, and
not being a decree or order, whether such unregistered
document be of the same nature as the registered document
or not.

(2) Nothing in sub-section (1) applies to leases exempted
under the proviso to sub-section (1) of
section 17
or to any
document mentioned in sub-section (2) of the same section,
or to any registered document which had not priority under
the law in force at the commencement of this Act.

Explanation.--In cases, where Act No. 16 of 1864 or the

Indian Registration Act, 1866
(20 of 1866), was in force in
the place and at the time in and at which such
unregistered document was executed, "unregistered" means
not registered according to such Act, and, where the
document is executed after the first day of July, 1871, not
registered under the
Indian Registration Act, 1871
(8 of
1871), or the
Indian Registration Act, 1877
(3 of 1877), or
this Act.

Order 39 Rule 1 and 2
of CPC
which read as under:

"1. Cases in which temporary injunction may be granted.--
Where in any suit it is proved by affidavit or otherwise--

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(a) that any property in dispute in a suit is in danger of
being wasted, damaged or alienated by any party to the
suit, or wrongfully sold in execution of a decree, or (b) that
the defendant threatens, or intends, to remove or dispose of
his property with a view to [defrauding] his creditors,
[(c) that the defendant threatens to dispossess, the plaintiff
or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit,] the Court may by order
grant a temporary injunction to restrain such act, or make
such other order for the purpose of staying and preventing
the wasting, damaging, alienation, sale, removal or
disposition of the property [or dispossession of the plaintiff,
or otherwise causing injury to the plaintiff in relation to
any property in dispute in the suit] as the Court thinks fit,
until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach.

--(1) In any suit for restraining the defendant from
committing a breach of contract or other injury of any kind,
whether compensation is claimed in the suit or not, the
plaintiff may, at any time after the commencement of the
suit, and either before or after judgment, apply to the Court
for a temporary injunction to restrain the defendant from
committing the breach of contract or injury complained, of,
or any breach of contract or injury of a like kind arising
out of the same contract or relating to the same property or
right.

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(2) The Court may by order grant such injunction, on such
terms as to the duration of the injunction, keeping an
account, giving security, or otherwise, as the Court thinks
fit.

[2A. Consequence of disobedience or breach of injunction.--(1)
In the case of disobedience of any injunction granted or
other order made under rule 1 or rule 2 or breach of any
of the terms on which the injunction was granted or the
order made, the Court granting the injunction or making the
order, or any Court to which the suit or proceeding is
transferred, may order the property of the person guilty of
such disobedience or breach to be attached, and may also
order such person to be detained in the civil prison for a
term not exceeding three months, unless in the meantime
the Court directs his release.

(2) No attachment made under this rule shall remain in
force for more than one year, at the end of which time, if
the disobedience or breach continues, the property attached
may be sold and out of the proceeds, the Court may award
such compensation as it thinks fit to the injured party and
shall pay the balance, if any, to the party entitled thereto.]

Order 43 Rule 1 read with
Section 104
of CPC which reads as
under:

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1. Appeal from orders.--An appeal shall lie from the
following orders under the provisions of section 104, namely:

--

(a) an order under rule 10 of Order VII returning a plaint
to be presented to the proper Court [except where the
procedure specified in rule 10A of Order VII has been
followed];

(c) . an order under rule 9 of order IX rejecting an
application (in a case open to appeal) for an order to set
aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an
application (in a case open to appeal) for an order to set
aside a decree passed ex parte;

(f) an order under rule 21 of Order XI;

(i) an order under rule 34 of Order XXI on an objection to
the draft of a document or of an
endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting
aside or refusing to set aside a sale;

[ja) an order rejecting an application made under sub-rule
(1) of rule 106 of Order XXI, provided that an order on the
original application, that is to say, the application referred
to in sub-rule (1) of rule 105 of that Order is appealable;]

(k) an order under rule 9 of Order XXII refusing to set

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aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing
to give leave;

(n) an order under rule 2 of Order XXV rejecting an
application (in a case open to appeal) for an order to set
aside the dismissal of a suit;
[(na) an order under rule 5 or rule 7 of Order XXXIII
rejecting an application for permission to sue as an indigent
person;]

(p) orders in interpleader-suits under rule 3, rule 4 or rule
6 of Order XXXV;

(q) an order under rule 2, rule 3 or rule 6 of order
(XXVIII);

(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule
10 of Order XXXIX;

(s) an order under rule 1, or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-
admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 1 [or rule 23A] of Order XLI
remanding a case, where an appeal would lie from the
decree of the Appellate Court;

(w) an order under rule 4 of Order XLVII granting an
application for review."

104. Orders from which appeal lies.--(1) An appeal shall lie
from the following orders, and save as otherwise expressly

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provided in the body of this Code or by any law for the
time being in force, from no other orders:--

[(ff) an order under section 35A;]
[(ffa) an order under
section 91
or
section 92
refusing leave
to institute a suit of the nature
referred to in
section 91
or
section 92
, as the case may be;]

(g) an order under section 95;

(h) an order under any of the provisions of this Code
imposing a fine or directing the arrest or detention in the
civil prison of any person except where such arrest or
detention is in execution of a decree;

(i) any order made under rules from which an appeal is
expressly allowed by rules:

[Provided that no appeal shall lie against any order specified
in clause (ff) save on the ground
that no order, or an order for the payment of a less
amount, ought to have been made.]
(2) No appeal shall lie from any order passed in appeal
under this section."

9. Now, if the facts of the case on hand, as can be

collected from the material on record, are perused, the

plaintiffs and defendants nos.1 to 4 are sisters and brothers;

that they entered into a Memorandum of Understanding

(`MOU' for short) that the plaintiffs will have to relinquish

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their rights on receipt of some consideration; the notice under

Section 135D is issued before deleting the names of the

plaintiffs; the relinquishment deed is prepared and executed;

it is stated before the Sub-Registrar that the plaintiffs have

received the consideration and therefore they are relinquishing

their rights; that the defendant nos.1 to 4 have sold the

property to defendant no.5; the possession is handed over to

the defendant no.5; that on the date of the suit, the disputed

property was dug up by the defendant no.5 with a view to

construct; that now the construction of three storeyes is

already put up on the disputed land, as fairly submitted by

learned senior advocate Mr.Thakore during the course of

arguments; that the plaintiffs filed the suit seeking various

reliefs by stating that the plaintiffs did not receive any

amount as per the MOU and the relinquishment deed is

executed under cooercion, pressure and by misrepresenting the

contents, along with an application for interim injunction,

which application was allowed by the impugned order passed

by the learned trial Court.

10. Now, as regards the submissions made by learned

senior advocates for the appellants, there is no doubt about

the fact that the plaintiffs have approached the Court beyond

the period of 1 ½ years of the relinquishment deed is

executed. However, for that, the plaintiffs have indicated the

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circumstances in the plaint itself which prima facie is

required to be considered and perused for the purpose that

whether the plaintiffs are vigilant to pursue their remedy. It

transpires that the plaintiffs are residing at different place

other than where the property is situated. The plaintiffs are

married sisters and admittedly the plaintiffs are co-owners as

properties are ancestral and considering the provisions of

Section 22
of the Hindu Succession Act also, in the facts of

the present case, the defendants who happen to be the

brothers of the plaintiffs cannot sell the property of joint

ownership without the written consent and without paying

any amount of consideration to the plaintiffs. Therefore,

considering all these aspects, prima facie, the plaintiffs have

established their case in the plaint by averring necessary

averments in the plaint itself as well as Exh.5 application

which clearly indicate that the prima facie case about the

right of the plaintiffs is jeopardized by the action of the

defendants.

11. The submissions made by learned senior advocate

Mr.Shah for the original plaintiffs, by referring to paragraphs

19 and 22 of the plaint, that there is nothing on record to

show that that any amount is paid towards the consideration

though it is specifically mentioned in the MOU executed

between the parties prior to the execution of the

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relinquishment deed that such amount is required to be paid

and that Section 135D notice issued under the Bombay Land

Revenue Code is not received by both the plaintiffs and

somebody has signed the notice are required to be contested

at the time of trial.

12. Further, the agreement to sale cannot confer any

right, title or interest to the party concerned in absence of

payment of entire sale consideration and valid document

which is registered in accordance with law, no sale deed is

executed between the defendants, there is nothing on record

to show that the possession is handed over to the defendant

no.5, the defendant no.5 has not filed any proceeding for

specific performance of the agreement to sale and execution

of sale deed, the development permission which is allegedly

produced on the record by the defendants in support of their

case is merely a resolution passed by the village panchayat

and no actual development permission granted by any

authority is produced on the record, then under which

authority the defendant no.5 has started the construction over

the land in question, knowing fully well that the dispute is

going on between the parties. At the time of suit, merely the

disputed land was dug up and thereafter they have acted in

high handed manner and taken risk by putting up further

construction to three storeyed level, which itself creates

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prejudice to the rights of the plaintiffs and therefore such

contention raised by learned senior advocate Mr.Patel that

there is no prima facie case or balance of convenience in

favour of the plaintiffs or the plaintiffs can be compensated

in terms of money is not helpful to the defendants. The

apprehension of the plaintiffs that if the disputed land is

sold and further right is created by third party there will be

more complication in the proceedings seems to be coming true

in view of the construction put up by defendant no.5 and the

learned trial Court has rightly considered all these aspects.

13. As regards the submission that the relinquishment

deed is executed pursuant to the MOU which is registered,

there is no doubt that the relinquishment deed is registered

and the presumption is that the registered document is prima

facie valid in the eye of law. However, when the plaintiffs

have raised the serious dispute of the relinquishment deed

itself by alleging that it is executed under undue pressure

and misrepresenting the contents of the same which amount

to fraudulent transaction which needs to be decided in a full-

fledged trial by producing documentary evidence and therefore

the status-quo has to be granted for land in question during

such trial, which is granted by the learned trial court with a

view to to avoid multiplicity of proceedings. Thus, the learned

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trial Court has rightly exercised its discretion and it cannot

be said that the learned trial Court has not used its

discretion judiciously and no infirmity or illegality is found in

the findings given by the learned trial Court.

14. The learned trial Court cannot infer anything at

this stage more particularly while considering the prima facie

case, balance of convenience and irreparable loss on the basis

of such document. All these arguments are required to be

considered by the learned trial Court at the time of full

fledged trial that whether the defendants have right to

execute any agreement to sale and thereafter the subsequent

purchaser vendee has right to construct on the property in

question on the basis of such agreement of sale more

particularly when the suit proceedings are pending, therefore,

the reasons assigned by the learned trial Court regarding

factors that the prima facie case as well as balance of

convenience, irreparable loss are found just and proper and

no illegality or impropriety is committed by the learned trial

Court while reaching to the findings for granting injunction

in the facts of the present case.

15. There cannot be any dispute with regard to the

ratio laid down in the judgments cited by learned senior

advocate Mr.Thakore and learned senior advocate Mr.Patel for

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the defendants, however, these judgments are not squarely

applicable to the facts of the present case except the fact

that the relinquishment deed is a registered document and

also regarding fraudulent transaction alleged by the parties.

However, when the said registration itself is challenged, the

suit has to be tried fully to decide the rights of the parties.

16. At this stage, it is relevant to refer to the
judgment relied on by learned senior advocate Mr.Shah in

the case of Venigalla Koteswaramma (supra), more

particularly, paragraph 40, which reads as under:

"40. Apart from the above, it is also fundamental, as per

Section 54
of the Transfer of Property Act, 1882, that an
agreement for sale of immovable property does not, of itself,
create any interest in or charge on such property. [ Vide
Bank of India v. Abhay D. Narottam, (2005) 11 SCC 520] A
person having an agreement for sale in his favour does not
get any right in the property, except the right of obtaining
sale deed on that basis [ Interestingly, in the present case,
the vendee or his legal representatives, claiming under the
agreement for sale dated 5-11-1976 (Ext. B-10), did not seek
specific performance of the alleged agreement.] . For ready
reference, we may reproduce
Section 54
of the Transfer of
Property Act that reads as under:

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"54."Sale" defined.--"Sale" is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-

promised.

Sale how made.--Such transfer, in the case of tangible
immovable property of the value of one hundred rupees and
upwards, or in the case of a reversion or other intangible
thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value
less than one hundred rupees, such transfer may be made
either by a registered instrument or by delivery of the
property.

Delivery of tangible immovable property takes place when
the seller places the buyer, or such person as he directs, in
possession of the property.

Contract for sale.--A contract for the sale of immovable
property is a contract that a sale of such property shall
take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on
such property."

It goes without saying that the alleged agreement for sale
did not invest the vendee with title to, or any interest in,
the property in question; and the alleged agreement for sale
did not invest the vendee with any such right that the
plaintiff could not have maintained her claim for partition in
respect of the properties left by Annapurnamma without
seeking declaration against the agreement. Therefore, this
plea about non-maintainability of suit for want for relief of

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declaration against the said agreement for sale remains
totally baseless and could only be rejected."

17. The judgment in the case of Wander Ltd. (supra),

it is held in paragraph 14 as under:

"14. The appeals before the Division Bench were against the
exercise of discretion by the Single Judge. In such appeals, the
appellate court will not interfere with the exercise of discretion of
the court of first instance and substitute its own discretion except
where the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the court had
ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of discretion
is said to be an appeal on principle. Appellate court will not
reassess the material and seek to reach a conclusion different
from the one reached by the court below if the one reached by
that court was reasonably possible on the material. The appellate
court would normally not be justified in interfering with the
exercise of discretion under appeal solely on the ground that if it
had considered the matter at the trial stage it would have come
to a contrary conclusion. If the discretion has been exercised by
the trial court reasonably and in a judicial manner the fact that
the appellate court would have taken a different view may not
justify interference with the trial court's exercise of discretion.
After referring to these principles Gajendragadkar, J. In
Printers
(Mysore) Private Ltd. v. Pothan Joseph
[(1960) 3 SCR 713 : AIR
1960 SC 1156] : (SCR 721)

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"... These principles are well established, but as has been
observed by Viscount Simon in Charles Osenton & Co. v.
Jhanaton [1942 AC 130] '...the law as to the reversal by a court
of appeal of an order made by a judge below in the exercise of
his discretion is well established, and any difficulty that arises is
due only to the application of well settled principles in an
individual case'."

The appellate judgment does not seem to defer to this principle."

It is also fruitful to refer to the judgment of the Hon'ble Apex
Court in the case of Suraj Land and Industries Pvt.Ltd. V/s State
of Haryana reported in 2012(1) SCC 656, paragraphs 16, 18 and
19 as under:

"Scope of an agreement of sale

16.
Section 54
of the TP Act makes it clear that a contract of
sale, that is, an agreement of sale does not, of itself, create any
interest in or charge on such property. This Court in
Narandas
Karsondas v. S.A. Kamtam
[(1977) 3 SCC 247] observed: (SCC pp.
254-55, paras 32-33 & 37)

"32. A contract of sale does not of itself create any interest in,
or charge on, the property. This is expressly declared in
Section
of the Transfer of Property Act.
(See Ram Baran Prasad v.
Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The
fiduciary character of the personal obligation created by a contract
for sale is recognised in
Section 3
of the Specific Relief Act, 1963,
and in
Section 91
of the Trusts Act. The personal obligation
created by a contract of sale is described in
Section 40
of the
Transfer of Property Act as an obligation arising out of contract

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and annexed to the ownership of property, but not amounting to
an interest or easement therein.

33. In India, the word 'transfer' is defined with reference to
the word 'convey'. ... The word 'conveys' in
Section 5
of the
Transfer of Property Act is used in the wider sense of conveying
ownership.

***

37. ... that only on execution of conveyance, ownership passes
from one party to another...."

18.It is thus clear that a transfer of immovable property by way
of sale can only be by a deed of conveyance (sale deed). In the
absence of a deed of conveyance (duly stamped and registered as
required by law), no right, title or interest in an immovable
property can be transferred.

19.Any contract of sale (agreement to sell) which is not a
registered deed of conveyance (deed of sale) would fall short of
the requirements of
Sections 54
and
of the TP Act and will
not confer any title nor transfer any interest in an immovable
property (except to the limited right granted under
Section 53-A

of the TP Act). According to the TP Act, an agreement of sale,
whether with possession or without possession, is not a
conveyance.
Section 54
of the TP Act enacts that sale of
immovable property can be made only by a registered instrument
and an agreement of sale does not create any interest or charge
on its subject-matter."

18. There cannot be any dispute with regard to the

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ratio laid down in any of the judgments relied on by either

of the parties. However, the judgments are required to be

considered in the facts of each case.

19. This Court has taken appropriate note about the

conduct of the defendants, particularly, defendant no.5. The

defendants, knowing fully well that the suit proceedings are

pending for the subject matter, still they are trying to go on

with the construction. Not only that, when this Court, at the

time of issuance of notice has granted extension of stay order

granted by the learned trial Court against impugned order,

under the guise of the same, the construction is going on,

which fact is confirmed by the learned advocates for all the

parties during the course of arguments and photographs of

relevant development on the suit land are also produced for

perusal of this Court. In this background, though prima facie

it transpires that huge investment is made by the defendant

no.5-appellant of Appeal No.13 of 2023 without any valid

document of creation of conclusive title except the agreement

to sale in favour of the appellant and in absence of execution

of any sale deed or valid title over the property even then,

proceeding further to construct huge structure on the

disputed land and thereafter claiming equity in their favour

is required to be viewed strictly.

20. In view of the above, considering the judgments

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and considering the material available on the record, it

transpires that everything is done in highhanded manner by

the appellants as the agreement to sale did not invest the

vendee with the valid title or any absolute interest in the

property in question and the alleged agreement for sale

which is without possession, did not invest vendee with any

right against which the plaintiffs could not have maintained

their claim for partition in respect of the property, the

person having any agreement to sale in his favour does not

get any right in the property except right of obtaining sale

deed on that basis. Therefore, considering the undisputed fact

that the plaintiffs are co-owners of the property, that

nowhere in the pleadings of the parties, more particularly, in

the written statement or anywhere the defendants have

averred that any amount of sale consideration or share of the

plaintiffs were paid to the plaintiffs, neither any documentary

evidence is produced to indicate that such payment is made.

It clearly transpires that now the appellant of appeal no.13

of 2023 has constructed huge portion and appellants of

appeal no.12 of 2023 have no right to execute such

agreement to sell and also regarding the document like MOU,

release deed etc., and all these aspects require a full fledged

trial and if the status-quo is not maintained during the

pendency of the suit, rights and nature of suit property will

change and it may lead to multiple proceedings and the

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interest of the plaintiffs may be lost in toto.

21. In view of the above, these appeals are found

meritless and required to be dismissed as no perversity or

illegality is found in the findings of the learned trial Court

and the learned trial Court is just and proper in granting

interim injunction in the facts and circumstances of the

present case, within the four corners of Order 39 Rule 1 and

2 read with
Section 151
of the CPC, more particularly, by

considering prima facie and balance of convenience which

goes in favour of the plaintiffs and such development

pursuant to the alleged transaction is required to be

deprecated.

22. Accordingly, these appeals are dismissed, by

confirming the findings given in the impugned order passed

by the learned trial court below Exh.5. The stay of the

impugned order granted by the learned trial Court and

extended by this Court is vacated forthwith.

23. The appellants have shown utter disregard to the

process of the court by proceeding further with the

construction on the disputed property though the substantial

proceedings are pending before the learned trial Court as

well as before this Court. It is needless to say that such

action of development which is carried out till date by the

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NEUTRAL CITATION

C/AO/12/2023 CAV JUDGMENT DATED: 20/03/2024

undefined

appellant-defendant no.5 is at his own risk and cost and

therefore no equity can be claimed by the appellant on that

count, looking to his conduct and accordingly the order

passed by the learned trial Court is required to be complied

with in its true letter and spirit.

24. As the appeals from order are dismissed, civil

applications are also dismissed.

(SANDEEP N. BHATT,J)

25. After pronouncement of the judgment, learned

senior advocates Mr.B.S. Patel and Ms.Trusha Patel for the

respective appellants pray for extension of the interim relief,

which is granted by this Court while issuing notice. The

Court has observed in the judgment that the construction has

been carrying out during pendency of the suit as well as

even these proceedings and any further construction will

certainly jeopardise the rights of either party. Therefore, the

request made by learned senior advocates Mr. B.S.Patel and

Ms. Trusha Patel are refused.

(SANDEEP N. BHATT,J)
SRILATHA

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