1. This petition is preferred under Article 227 of the Constitution of India challenging the order of learned 5th Additional District Judge, Surat in Miscellaneous Civil Appeal No.22 of 2006 passed on 26.9.2011, whereby he set aside the order of learned 3rd Additional Senior Civil Judge passed in Regular Civil Suit No.405 of 2004 on grant of injunction in favour of the present petitioners.
2. Facts in capsulized form are as under:
2.1 The petitioner No.1 and 2 are sons of deceased Dahyabhai Haribhai. Pedigree of deceased Dahyabhai Haribhai is given at page 4 of the petition. Respondent Nos.4 to 5 are the daughters of deceased Dhirubhai Dahyabhai, who was the son of deceased Dahyabhai Haribhai whereas respondent Nos.6,7 and 8 are the son and daughters respectively of deceased Sumitraben Dahyabhai.
3. Respondent Nos.1 to 3 are the purchasers of the suit land along with their deceased father Ambalal Umedbhai Patel. They purchased this very suit land from deceased Dhirubhai, son of Dhayabhai. Dhirubhai sold the property as an absolute owner of the suit land basing his claim on a will alleged to have been executed by Dhayabhai Haribhai during his life time. This land bearing Revenue Survey No. 190/1( Block No.206) admeasuring 2327 sq.meters at village Sachin, taluka Choriyasi in District: Surat ( to be hereinafter referred to as “ the suit land”) was owned and cultivated by Shri Dahyabhai Haribhai, which was his selfacquired property. He died intestate on 7.12.1981. The mutation Entry No.1774 was entered in village Form No.6. This entry was cancelled by an order dated 9.3.1984 by Deputy Mamlatdar. Another mutation Entry being 2072 was effected on 30.8.1984 where names of all legal representatives of deceased Dahyabhai were entered in the revenue record as joint holders.
Sumitraben died on 1.3.1984. Therefore, mutation Entry No.2176 was effected on 28.5.1986 and names of her heirs were entered in the revenue record along with said heirs of deceased Dahyabhai.
4. It is averred that Dhirubhai alias Arunbhai Dahyabhai executed unregistered sale deed on 5.5.1986 in favour of Shri Ambalal Umedbhai Patel for sale of the suit land for a total consideration of Rs.75,000/. None of the heirs was a party to the said agreement.
5. It is averred that Dhirubhai in collusion with Ambalal Umedbhai Patel, conspired to ensure that other heirs do not get their right in the suit land. The collusive suit being Special Civil Suit No. 378 of 1990 was filed in the Court of Civil Judge (SD), Surat for specific performance of the aforementioned agreement and declaration and permanent injunction in respect of the suit land. No heir was party to the said suit and the same was not contested. Issues were framed on 12.6.1991 and written statement was filed subsequent to the filing of issue i.e. on 27.1.1992. Nearly after one month of the filing of the written statement, compromise purshis was tendered on 12.2.1992 and consent decree was passed on the basis thereof directing deceased Dhirubhai to execute the registered sale deed in favour of deceased Ambalal Umedbhai Patel and his three sons ( Respondent Nos.1 to 3 herein) on 15.2.1992. No mutation entry was effected in the revenue record in respect of the sale deed in as much as the suit land was a fragment within the meaning of provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and no permission was accorded by the statute for sale of such fragment.
After the death of Dhirubhai on 26.11.1993, widow of respondent No.4 applied to Talati, Sachin on 8.3.2001 to delete the word “fragment” from the revenue record. One of the recitals in the sale deed dated 15.2.1992/31.5.1999 is that the suit land since is the entire plot, there was no bar of the provisions of Prevention of Fragmentation Act and Consolidation of Holdings Act, 1947. Although this was a recital in the sale deed, respondent No.4 requested to remove the word “ fragment” and mutation entry No.3120 was effected on 8.3.2001 to the effect that the suit land is in fragmentation and the same was certified on 5.5.2001 by a Circle Officer. In this manner, after more than 9 years, on the basis of the registered sale deed of the year 1992, Mutation Entry No.3121 was certified. Shri Ambalal Patel made a will on 8.6.2004 in favour of respondent Nos.1 to 3 and died on 9.6.2004. According to the petitioners they came to know about this only on 12.8.2004 when they obtained the copies of relevant extract and on realizing this alleged fraud committed by their own brother in collusion with Ambalal Patel, a warning notice was issued in 'Gujarati Mitra' daily alerting the members of public not to enter into any transaction with these respondents. A reply was given by them on 23.8.2004 and on the basis thereof the petitioners filed a Regular Civil Suit No.405 of 2004 for declaration, permanent injunction and cancellation of said sale deed.
6. An application for interim injunction was preferred for restraining the respondents in any manner dealing with the suit land or to transfer the same further.
Learned Additional Senior Civil Judge by his order dated 31.12.2005 allowed the injunction application and restrained respondent Nos. 1 to 3 from dealing with the suit land in any manner as also from handing over the possession to the third party till the final disposal of the suit.
7. When challenged before the appellate Court in Miscellaneous Civil Appeal No.22 of 2006 as mentioned hereinabove, the learned Judge set aside such an order in favour of the respondents of this petition.
8. It would be relevant to make a mention of the fact that the signature of Dahyabhai has been disputed on the will and, therefore, Dahyabhai's signature had been sent to the Chief Examines of questioned documents, FSL, Government of Gujarat and after thorough examination, from the disputed signature and the admitted signature of the deceased, report has been prepared on 3.4.2009 specifying that the disputed signature of the Will dated 2.11.1981 was forged and not genuine.
9. Learned Senior Advocate Mr. Percy Kavina appearing for the petitioners has emphatically submitted that learned District Judge while setting aside the judgment and order of the learned trial Court did not take into consideration the report of FSL where in no uncertain terms, it has been mentioned that signature of the will is forged. Admitted signatures of Dahyabhai were not in dispute and in the event of such scientific report of FSL, the Court ought to have held the case of the present petitioners prima facie. Learned Senior Advocate has taken this Court through various documents to emphasize that this is an apparent case of fraud by one of the family members where father of the present respondents No.1 to 3 colluded with him in getting the consent decree of specific performance. He further pointed out that alleged will of Dahyabhai also mentions other bequeaths except the land in question, other bequeaths have not taken place. He urged the Court that there should be an equitable indulgence on the part of the Court and there will be all cooperation on the part of the present petitioners if there is direction of expeditious hearing of the suit which is already of the year 2004.
Learned advocate Mr. Amit Thakkar appearing for the respondents on the ground of delay urged the Court not to entertain the petition. He further pointed out that the plain reading of the plaint would indicate that there is no prayer challenging the validity of the will and this would prove to be fatal. Moreover, the consent decree also has not been challenged and, therefore, when the payment has been made by cheques, by the father of respondent Nos.1 to 3 and in the year 2001. When the notice must have been issued under Section 135(d) of the Land Revenue Code, the petitioners were in know of such mutation entry and, therefore after such long delay when such a suit has been brought, learned District Judge was right in setting aside the order of learned Senior Civil Judge. He further urged that over and above the delay, the challenge is also not made to the decree. Moreover, there is absolutely no question of making payment, through the cheque if there was a collusion. He emphasized that by virtue of the decree of the Court, the right of ownership has been created in favour of the deceased. Father of respondent Nos.1 to 3 are entitled to enjoy that property.
10. This petition requires to succeed calling for interference of the order of learned District Judge passed on 26.9.2011 for the reasons to be followed hereinafter:
10.1 The only reason which is given by learned Judge is of limitation for denying equitable relief to the present petitioner. All the decisions cited by both the sides have been mentioned but they are not discussed. Not that absence of discussion of decisions would call for interference of this Court. Since the registered sale deed has come into being in the year 1992, learned Judge was of the opinion that for the first time the dispute with regard to such document has been raised in the year 2006. Thus, when the sale is of the year 1981 and the sale deed is of 1992 and mutation entry of the in the year 2001 is in the name of the present respondents, the dispute raised in the year 2006, in his opinion, would ultimately bar the suit and, therefore, dissentitled the present petitioners to any equitable relief. It is apparent from this order that there is no reference of the report of handwriting expert in this entire discussion.
11. Learned Judge thus was of the opinion that the trial Court committed an error in disregarding the issue of limitation while granting the injunction. If one looks at the order of the trial Court, it discussed the factual matrix of the case. It also considered that the very Will of Dahyabhai based on which the transfer was effected by Dhirubhai to the father of the present respondents when is doubtful, the subsequent transfer needed to be halted. There the demand of fullfledged adjudication of the disputes is raised by both the sides. However, when he found prima facie case of the petitioners trial Court rightly held that and as evidence with regard to the challenge to the will would only be a subject matter of the trial, the Court deemed it appropriate to direct the respondents not to transfer the suit land any further. As can be seen from the record, entire claim of respondent Nos.1 to 3 is based on registered sale deed effected by the son of deceased Dahyabhai in favour of the deceased father of respondent Nos. 1 to 3. This sale deed was effected between the parties pursuant to the consent decree passed by learned Civil Judge in Special Civil Suit No.378 of 1990. Admittedly, heirs of Dahyabhai were neither parties to the agreement to sale nor in the registered documents. It is also an admitted fact that except the suit land in question, other bequeaths averred in the will has not taken place, which also creates serious doubt in respect to the said document. The consent of the expert in this question document is disputed when the signature alleged to be forged is compared with his admitted signatures. It is needed to be noted that the admitted signatures are taken from the official record which are registered sale deeds dated 6.5.1980 and 3.5.1980 ( Mark N1 to N3) to which there bas been no challenge by the either side. Thus, at the stage of injunction application, this would have a material bearing and particularly when the entire transfer has taken place on the basis of such testamentary document to the prejudice of rest of the heirs. There was no will ever executed by the deceased and he died intestate. As rightly pointed out by learned Senior Advocate Mr. Kavina that in Special Civil Suit No.378 of 1990 where deceased father of the respondents sought prayer of specific performance in respect of the suit land, the written statement had been filed subsequent to the drawing of the issues and within one month of filing of the written statement, the parties tendered compromise purshis urging the Court for a consent decree. As can be noted here, based on agreement to sell entered into between the deceased Dhirubhai and deceased Ambalal, the suit was preferred without joining any of the heirs. These circumstances, create serious question marks. Although, nothing requires to be finalized at this stage, but, these circumstances shall have to be eventually regarded and decided at the touchstone of the evidence that may come during the trial. Suffice to mention that this would presently lean against the respondents herein.
12. All direct descendants were entered and mutated after 30.8.1984 being Entry No.2072 after the death of Dahyabhai on 7.12.1981. Thereafter, on the death of Sumitraben another entry was mutated being Entry No. 2176 where also names continue and heir of Sumitraben were mentioned. Interestingly another entry was mutated being entry 3120 where reference is made of Dhirubhai Dahyabhai and it is also noted that the suit land is a fragment under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and, thereafter vide Entry No.3121 by recording court's order dated 8.3.2001 the registered sale deed effected in favour of the respondents pursuant to the consent decree has been mentioned. This entry No.3121 was mutated on 12.4.2001 and thereafter the same was certified on 5.5.2001 nearly after 35 days on time gap. There is no reference of any proceedings under subSection 135D nor any other details for the Court to know as to whether after issuing the notices to concerned legal heirs that the same has been certified or not.
13. According to the petitioner, they issued a notice in the year 2004 in 'Gujarat Mitra' daily warning the respondents not to transfer the suit land further by challenging the registered sale deed and thereafter filed suit as per the plaint.
14. The plaint paragraph6 suggests that cause of action arose when the certified copies were obtained on 12.8.2004 with regard to the entry dated 5.5.2001. Therefore, the suit preferred in August, 2004 may appear ex facie time barred, not to talk of the date of registered sale deed which is a notice to the public at large. In absence of any record, to indicate that the notices under Section 135(d) of the Land Revenue Code had been issued to the legal heirs and representatives or not and with no details having been made available that knowledge of mutation of the entry which was certified on 5.5.2001 to the petitioners was from the year 2001, this question of limitation being a mixed question of law and fact, the Court ought not to have denied the equitable relief in favour of the petitioner.
At the cost of reiteration, it needs to be mentioned that when the selfacquired property of the deceased Dahyabhai is transferred by one of the legal heirs without the consent of others by a registered sale deed by obtaining a consent decree of the Court and, thereby getting the entry in the record of rights, law is very well laid down that such entries in the record of rights have no evidentiary value and they are made only for the fiscal purpose. The title of the properties are not decided on the basis of mutation of entry effected in view of the revenue record, which has only presumptive value and such presumption is rebuttable. It is also well settled law that question of limitation is a mixed question of law and fact and it would not be possible for this Court to hold on a plain reading of material on record that the suit is barred by the law of limitation.
Considering the facts which are before the Court such interpretation would accord premium to the parties who prima facie appear to have defeated the legal right of other heirs by obtaining consent decree and getting property by virtue of such decree of the Court. Various decisions pressed into service by both the sides are taken note of which may not require elaborate discussion.
15. Sufficient to hold here that by denying the petitioner the injunction as sought for would not only nonsuit the petitioner but that would also cause multiplicity of the proceedings if further transfer is not prevented. Resultantly, this petition is allowed. Order passed by learned District Judge dated 26.9.2011 rendered by 5th Additional District Judge, Surat is hereby quashed and set aside, consequently restoring order of learned Additional Senior Civil Judge, Surat passed in application of interim injunction dated 31.12.2005. The petition is allowed to the extent above. None of the observations made while deciding the petition shall determine any of the disputes raised by the parties at the time of trial. The Trial Court shall, on independent examination of the evidence, as may be produced before it, shall adjudicate the issues.
16. With this the petition stands disposed of with no order as to costs.
(Ms. Sonia Gokani, J. ) sudhir