This Appeal From Order has been filed by the appellants-original plaintiffs being aggrieved by the order dated 6-2-2012 passed by the learned Chamber Judge, City Civil Court No.13, Ahmedabad, dismissing Notice of Motion Ex.6 and ad-interim injunction application Ex.7 filed by the plaintiffs.
Short facts are that a suit being Civil Suit No.1158 of 2011 was filed by the original plaintiffs to permanently declare that the defendants have no right, title or interest in Flat No.C/2 of Parshwanath Park situated on Final Plot No.178 Sub Plot No.A of T.P.Scheme No.12 of Asarwa, Ahmedabad, or the land adjoining to the said flat admeasuring 113.3 sq.yard together with an application for temporary injunction at Ex.7 restraining the defendants from dispossessing the plaintiff and from interfering with the possession and enjoyment of land adjoining to said Flat No.C/2 of Parshwanath Park. Upon affording opportunity of hearing to learned advocates appearing for the respective parties, learned Chamber Judge, Court No.13, City Civil Court. Ahmedabad, dismissed the Notice of Motion and ad-interim injunction filed by the plaintiff. Hence, the present Appeal From Order.
Heard learned counsel, Mr.J.T.Trivedi for Mr.B.J.Trivedi for the appellants-original plaintiffs and learned counsel Mr.Paresh M.Darji for Mr.Mitul K.Shelat for the respondents-original defendants.
Learned counsel, Mr.Trivedi submitted that prima facie it is established that plaintiffs are in exclusive possession of the disputed property since 1996. He relied on a document i.e. typed copy of letter dated 3-6-1996 issued by M/s Jay Construction Company showing that suit property has been allotted to Plaintiffs and Mr.Pravinbhai Mehta. He further submitted that agreement at mark 4/6 cannot be said to be an agreement in the eye of law and cannot be legally enforceable and hence, the defendant No.1 has no right to evict the plaintiffs based on the agreement mark 4/6. He further submitted that Shrenikbhai Kasturbhai and others were the original owners of final plot No.178 of T.P.Scheme No.12 of mouje Rakhial, however, as per Sec.21 of Gujarat Urban Land & Ceiling Act, the Additional Collector and Competent Authority issued an order to raise Co-operative Society for the weaker sections and hence, in pursuance of a banakat executed in favour of Vimalnath Cooperative Housing Society on 10-11-1979, a contract was given to M/s Bhagirath Construction Company to develop the society. Due to non-performance of said contract, a tri-party contract was given to M/s Jay Construction. However, as Vimalnath Co-Op.Housing Society was ordered not to take any member qua the suit land in the revenue proceedings, an agreement was executed with M/s Jay Construction Company whereby all the rights for development of the property was entrusted to M/s Jay Construction Company. Consequently, different members were allotted the suit land including the plaintiffs to whom Flat No.C/2 together with adjoining land admeasuring 113.3 sq. yards was allotted. He further submitted that in the said adjoining land admeasuring 113.3 sq.yards. which was given on rent to Indus Tower Ltd. long back, a tower of Idea Cellular Company has been erected. According to him, the defendant No.1 is a proposed society and hence, it has no right to purchase property by evicting the plaintiffs from their exclusive possession of the suit land. In this regard, he relied on the judgments in the cases of Chitrakut Dham Cooperative Housing Society Ltd. Mahuva Vs. Kharak Haribhai Ravjibhai Bhalariya and others reported in 51(1) GLR page 430; Ramji Mandir Narsinhji and others Vs. Narsinh Nagar @ Tekri Cooperative Housing Society Ltd. And others reported in 20 GLR 1979 page 801; Krishna Ram Mahale (dead) by his LRs. Vs. Mrs.Shobha Venkat Rao reported in AIR 1989 SC page 2097 and Maneklal Mansukhbhai Cooperative Housing Society Ltd. Vs. Rajendrakumar Maneklal Shah and Anr. reported in 2002(1) GLH page 290 (SC).
Learned counsel, Mr.Paresh Darji for Mr.Mitul Shelat for the respondents-original defendants submitted that M/s Jay Construction Company has no right to allot flat No.C/2 along with adjoining land admeasuring 113.3 sq.yards to plaintiffs as no title of the suit property was passed on to it and only banakhat right was given to it and, therefore, the plaintiffs have no title over the suit property or the adjoining land as per the Transfer of Property Act. He further submitted that as stay has been granted by the Revenue Tribunal restraining M/s Vimalnath Co-Op.Housing Society from taking members, no right is accrued to M/s Jay Construction Company to allot suit property or adjoining land. As far as the contention of the plaintiffs that defendant No.1 is an unregistered society is concerned, he submitted that if defendant No.1 is an unregistered society, no relief can be sought against the said society by filing suit. He also relied on the judgment of this Court reported in 2009(2) G.L.H. Page 437 in the case of Jasoda Indralal Vadhva Vs. Hemendrabhai Kakulal Vyas and Ors.; (1993)4 Supreme Court Cases page 1 in the case of Subodh Kumar Gupta Vs. Shrikant Gupta and Others and (1998)4 Supreme Court Cases page 539 in the case of Punjab Urban Planning and Development Authority Vs. Shiv Saraswati Iron & Steel Re-Rolling Mills.
This Court has gone through the impugned order passed by the trial court as well as the oral as well as documentary evidence appearing on record together with the judgments relied on by the respective learned counsel.
It is clear that in pursuance of order passed by the Additional Collector and Competent Authority under Sec.21 of Urban Land & Ceiling Act for developing land admeasuring 4467.90 sq.mtrs. Final Plot No.178 of mouje Ahmedabad which was owned by Shrenikbhai Kasturbhai as HUF of Kasturbhai Lalbhai for weaker sections of society, a banakhat was executed in favour of M/s Vimalnath Co-Operative Housing Society and M/s Bhagirath Construction. Due to non-willingness shown by M/s Bhagirath Construction, M/s Jay Construction Company was inducted for development of the project. It may be noted that M/s Vimalnath Co-Operative Housing Society was restrained by Competent Asuthority vide order No.77 of 1980 dated 2-7-1991 and 16-5-1992 from taking members and was restrained from allotting property of final lot No.178 on 1-1-1993. It is also noted that construction permission was given by Competent Authority to original owner Shrenikbhai Kasturbhai and others. Although title of final Plot No.178 was never passed on to M/s Jay Construction Company, vide mark 4/6, entire title of said final plot has been transferred to the defendants by registered sale deed. Only registered society can transfer the title by allotment and M/s Jay Construction Company not being a registered Co-Operative Housing Society has no power to transfer the title and hence, if any title has been transferred by M/s Jay Construction Company, no valid title can be transferred to the plaintiffs if allotment is made to them. Even if the title of Flat No.C/2 is transferred by M/s Jay Construction Company, then also, no title of the adjoining land to said flat can be transferred. It appears from the documents of the plaintiff that flat No.C/2 is now owned by Mr.Kantilal Tulsidas Zinzuwadia and a share certificate has been issued in his favour and hence, plaintiffs cannot be said to have title qua land admeasuring 113.3 sq.yards adjacent to Flat No.C/2.
As far as the judgments relied on by the learned counsel, Mr.Trivedi for the appellants are concerned, as facts of those judgments are different from the facts of the case on hand, the appellants-original plaintiffs would not be entitled to any benefit of those judgments.
It is a well settled principle of law that if the order passed by the trial court is just, legal and proper and no apparent error or jurisdictional error is committed by the trial court, then, the Court should not interfere with the order. However, if order passed by the trial court is unjust, illegal, improper and an apparent error or jurisdictional error is committed by the trial court, then only, this Court has power to interfere with the order passed by the trial court. It was held in Jasoda Indralal Vadhva (supra) relied on by the learned counsel for the respondents-original defendants that appellate court is not expected to interfere with the discretion of the trial court in granting injunction unless it is shown that power has been exercised arbitrarily or capriciously.
Thus, this Court is of the opinion that it has been rightly held by the trial court that the plaintiffs have failed to establish their prima facie case and hence, in view of ratio laid down in Jasoda Indralal Vadhva (supra), no interference is called for in the findings of the trial court.
Thus, Appeal From Order is dismissed. Civil Application does not survive and is disposed of. Notice is discharged.
[M.D.SHAH,J.] radhan Top