IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 330 of 2011 With CIVIL APPLICATION No. 9590 of 2011 In APPEAL FROM ORDER No. 330 of 2011 With CIVIL APPLICATION No. 1080 of 2012 In APPEAL FROM ORDER No. 330 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE MD SHAH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the
4 interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================= KANAIYALAL HARGOVINDAS PATEL & 4 Appellant(s) Versus DHARMESH MANILAL PATEL & 8 Respondent(s) ========================================= Appearance :
MR SHALIN MEHTA, SR.ADVOCATE WITH MS VIDHI J BHATT for Appellant(s) : 1 5.
MR VM PANCHOLI for Respondent(s) : 1, None for Respondent(s) : 2 9.
========================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 30/10/2012 CAV JUDGMENT
[1] By way of this appeal from order, the appellants herein – original plaintiffs have challenged the order dated 21.07.2011 passed by the learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural) below Exh.5 in Regular Civil Suit No.735 of 2007, by which the learned Judge has rejected the injunction application preferred by the original plaintiffs.
[2] Facts:
[2.1] The dispute relates to land bearing revenue survey no.282 situated in Ambli village, Taluka – Daskroi, District – Ahmedabad. On 23.07.1966, said land was transferred in the name of father of appellant no.1 (Hargovindas Patel) in village form no.6 vide entry no.1253. The father of appellant no.1 inherited this property from his father. Upon the death of the father, land was transferred in the name of appellant no.1's mother on 15.03.1973 and it was recorded in village form no.6 vide entry no.1378. On 18.11.1997, mother of appellant no.1 expired without leaving any will. However, on her death, appellant no.1 being son, became owner of the said land. On 04.10.2006, appellant no.1 issued public notice in the newspaper to get title clearance certificate as he was desirous of selling the land. To his shock and surprise, he received written objection from respondent nos.1 to 3 herein conveying that mother of appellant no.1 had sold the land to respondent nos.1 to 3 by registered sale deed dated 01.09.1995 and respondent nos.4 to 5 were confirming parties. Therefore, appellants herein instituted Regular Civil Suit no.735 of 2007 before the learned Principal Senior Civil Judge, Ahmedabad (Rural) seeking cancellation of registered sale deed dated 01.09.1995 executed in favour of respondent nos.1 to 3 herein by mother of appellant no.1. Along with the suit, the appellants also preferred injunction application Exh.5 praying that the respondents herein be restrained from disturbing the possession of the appellants and that the respondents be restrained from transferring the land to third party. It is the case of the appellants herein the suit as well as in the injunction application that respondent nos.1 to 3 herein have forged the signature (thumb impression) of mother of appellant no.1 and have concocted registered sale deed dated 01.09.1995. After hearing both the side, the learned Judge rejected the injunction application Exh.5 preferred by the appellants herein. Hence, this appeal from order.
[3] It is submitted by Mr.Shalin Mehta, learned senior advocate appearing for the appellants herein – original plaintiffs that suit land was owned by Hargovindas Patel. He died without leaving Will. His Class I heirs would include his wife Menaben and his son – appellant no.1 herein. Even if there is registered sale deed dated 01.09.1995, the same cannot transfer share of appellant no.1 in the suit property. It is also submitted that learned Judge failed to appreciated that mother of appellant no.1 was more than 70 years, she was illiterate and therefore, she could not have executed sale deed in favour of respondent nos.1 to 3. It is also submitted that learned Judge failed to appreciate that before execution of registered sale deed dated 01.09.1995, no public notice was issued by respondent nos.1 to 3. No title clearance certificate was obtained by respondents herein before getting sale deed of the suit land executed in their favour. At the relevant time, land was of new tenure. It is not believable that mother of appellant no.1 – Meeaben, an old lady applied for converting the land from new tenure to old tenure. It is also submitted that Vide order dated 25.07.2007 passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application TEN.B.A.No.346 of 1996, it is held that the appellants are the occupants of the land. It is also submitted that the order passed by the Tribunal is not upset by any court of law. Therefore, it is submitted that registered sale deed dated 01.09.1995 is dubious. The Trial Court failed to appreciate that appellants had prima facie case because mother of appellant no.1 could not have sold away share of appellant no.1 in the suit property. It is submitted that if injunction as prayed for is not granted, then, the appellants would have to suffer irreparable injury which cannot be compensated in terms of money. In support of above submissions, learned senior advocate for the appellants has relied on the case of Ramdas V/s. Sitabai reported in (2009) 7 SCC 444. Therefore, it is requested to quash and set aside the order dated 21.07.2011 passed by the learned Trial Court and to allow this appeal.
[4] Appeal from order is opposed by Mr.V.M.Pancholi, learned advocate appearing for respondent nos.1 to 3 herein – original defendants. It is submitted that order passed by the learned Trial Court is legal and proper. Respondent nos.1 to 3 are bona fide purchasers of the land in dispute from other of the appellant on 01.09.1995. It is further submitted that though sale deed was executed in favour of respondents, as early as in 1995, they have preferred suit on 14.12.2007 i.e. after period of 12 years. During this period, respondent nos.1 to 3 have not disposed of the land in dispute. It is also submitted that from the date of filing the application till the date of deciding the injunction application i.e. during the period of more than four years, respondent nos.1 to 3 have not disposed of the property. It is submitted that land in dispute was new tenure land and on 09.09.1965, entry no.1241 is mutated in the revenue records wherein it is mentioned that name of heirs of Hargovidas Patel is entered into record. It is submitted that on 25.05.1973, another entry being no.1378 was mutated in the record of rights, wherein it is mentioned that Hargovindas Patel has expired on 15.05.1973 and therefore, name of his wife Menaben was entered into the revenue record. It is submitted that so far as revenue proceedings are concerned, restrictions under section 43 of the Tenancy Act was removed and on the basis of order dated 16.03.1995 passed by the Deputy Collector, Entry No.2164 is mutated in the revenue record on 21.03.1995 for the land in dispute. It is submitted that when the restrictions under section 43 of the Tenancy Act are removed, then, mother of the appellant – Meenaben was entitled to sell the land in dispute. Name of Menaben was mutated in the revenue record since 25.05.1973 as heir of Hargovindas Patel and it appears that appellant no.1 never objected for the same. It is also submitted that as per sale deed, payment is also made by different cheques. It is further submitted that so far as submission of the appellant that respondents have forged the sale deed is concerned, till date no criminal complaint is filed against respondent nos. 1 to 3 herein. Learned advocate for the respondent nos.1 to 3 has relied on following decisions in support of his submission :
1. Mandali Ranganna v/s. T.Ramachandra and ors. [(2008) 11 SCC 1]
2. State of Orissa and Ors. v/s. Harapriya Bisoi [(2009) 12 SCC 378]
3. North Eastern Railway Administration, Gorakhpur v/s. Bhagwan Das [ (2008) 8 SCC 511 Making above submissions and relying on above decisions, it is requested to dismiss the appeal.
[5] Heard learned advocates for the respective parties. This Court has gone through the order passed by the learned Trial Court. It is rightly held by the learned Trial Court that as no complaint is lodged against the respondents herein for creating forged documents, no reliance can be placed on bare words. It is also rightly held by the learned Trial Court that though sale deed took place in the year 1995, suit is filed after long lapse of time in 2007 and therefore, on the ground of delay and laches, present appellants are not entitled for any relief as prayed for. After perusing the records, learned Trial Court has rightly come to the conclusion that before transaction took place, competent authority has already passed the order for converting new tenure land into old tenure land. Prima facie considering documents on record, it is found that respondent nos.1 to 3 are bona fide purchasers. It is also admitted fact that respondent nos.1 to 3 have not sold the property during the proceedings before the trial court. It has also come on record that on 25.05.1973, entry being no.1378 was mutated in the record of rights, wherein it is mentioned that Hargovindas Patel has expired on 15.05.1973 and therefore, name of his wife Menaben was entered into the revenue record. It is also reflected that Menaben was entitled to sale the land in dispute after the order dated 16.03.1995 passed by the Deputy Collector by which restrictions under section 43 of the Tenancy Act are removed. It is also pertinent to note that name of Menaben was mutated in the revenue records since 25.05.1973 and appellant no.1 has never objected for the same. Consideration by way of different cheques is also paid by the respondent nos.1 to 3 for purchase of land. Restriction under section 43 of the Tenancy Act was removed on 16.03.1995 and till 01.09.1995, Menaben had not entered the name of her son – appellant no.1. Therefore also, appellant no.1 is not entitled for disputed land as coowner. Now so far as judgment relied on by the learned advocate for the appellants in the case of Ramdas (supra) is concerned, same is not helpful to the appellants as the facts are different from the facts of present case. This Court is in agreement with the findings of the Trial Court.
[6] For the reasons stated above, the appeal from order is dismissed. No order in Civil Applications and same are disposed of accordingly.
[M.D.Shah, J.] satish