[1] The appellant - original defendant No.3 has challenged the order dated 18.10.2011 passed by the learned 2nd Additional Senior Civil Judge, Amreli below application Ex.5 in Special Civil Suit No.67/2010 whereby the learned Judge has partly allowed application Ex.5 and issued restraint order of injunction against the respondent No.3 herein - original defendant No.1 in respect of the land bearing survey No.14 situated at Village : Bhachaval, Taluka : Rajula, District : Amreli. So far as the land bearing survey No.16 is concerned, the learned Judge has rejected the application for injunction preferred by the original plaintiff.
[2] The appellant is the original defendant No.3 in the suit filed by the respondents No.1 and 2 herein being Special Civil Suit No.67/2010. The respondents No.1 and 2 claimed in the suit that the suit properties being survey Nos.14 and 16 are ancestral properties and, therefore, the respondent No.3 - original defendant No.1 was not authorized to sell away the suit property to anybody including the present appellant. Along with the suit, the respondents No.1 and 2 also preferred application Ex.5 for interim injunction. The appellant had appeared in the suit and objected to grant of any relief to the plaintiff. The learned Judge found that the land bearing survey No.14 was / is ancestral property and, therefore, the learned Judge thought it fit to exercise his discretion and granted injunction by the impugned order. The appellant claims that the appellant purchased the suit property by registered sale deed. He having become the owner of the land in question, learned Judge ought not to have passed an order of injunction by the impugned order. Therefore, being aggrieved by the impugned order, the appellant has preferred this appeal under Order 43 of the Civil Procedure Code.
[3] I have heard learned advocate for the appellant.
[4] Learned advocate for the appellant would argue that on the basis of the impugned order, the revenue authority will not make the entry in the revenue record in the name of the appellant, though the appellant had already become owner of the property under the registered sale deed and, therefore, the appellant is aggrieved by the impugned order. Learned advocate would further argue that the learned trial Judge has committed an error in recording prima facie finding to the effect that the land bearing survey No.14 was an ancestral property. He has further submitted that there is no material produced on record to show that the land bearing survey No.14 was ancestral property. Learned advocate has further urged that respondent No.3 held land bearing survey No.14 like land bearing survey No.16 and since he was absolute owner of all the lands in question, the learned Judge ought not to have granted injunction even in respect of the land bearing survey No.14 because by virtue of such injunction, even though the appellant having become owner of all the properties, the right and interest of the appellant will be jeopardized as the name of the appellant would not be recorded in the revenue record in view of the injunction granted by the learned Judge. He has therefore urged to entertain this appeal as the learned Judge has exceeded in his jurisdiction in granting injunction even in respect of land bearing Survey No.14. Learned advocate has submitted that in fact, there was no semblance of case on the basis of which learned Judge could have come to the prima facie conclusion as regards the status of the property being the joint property or ancestral property. Learned advocate has further submitted that the proceedings under Section 135(b) of the Bombay Land Revenue Code are to be initiated and to be strictly adhered to on the basis of the sale deed executed in favour of the party and if the injunction is allowed to stand, the very right available to the appellant to get its name entered under Section 135(b) would be affected though by virtue of the registered sale deed, the appellant, as on today, has become the owner of the property.
[5] I have gone through the documents produced on record and the impugned order passed by the learned Judge. It cannot be said that the learned Judge has not considered any material on record for granting injunction so far as the land bearing survey No.14 is concerned. Learned Judge after considering the documents at this stage, prima facie found that there was some substances in the say of the plaintiff that the land bearing survey No.14 which was held by the defendant No.1 was an ancestral property. The learned Judge, therefore, thought it fit to exercise his discretion and granted injunction in respect of the land bearing survey No.14. As stated above, the learned Judge has not granted any injunction in respect of the lands bearing survey No.16. It is well settled position of the law that if the parties to the suit make out some case for grant of interim injunction, then, it will be always in the interest of justice to see that the subject matter of property is preserved pending the suit so third party interest may not be created. As stated above, the learned Jude has found some substance and after recording findings, prima facie come to the conclusion that the land bearing survey No.14 was ancestral property in the hands of the defendant No.1 and, therefore, the learned Judge has exercised his discretion and granted interim injunction. At this stage, it is required to be noted that the injunction granted by the learned Judge is to the effect that the defendant No.1 is to maintain status-quo in respect of revenue record. However, the appellant has come with this appeal stating that the right, title and interest of the appellant will be jeopardized as the name of the appellant would not be recorded in the revenue record if the injunction is allowed to continue. Learned advocate for the appellant has made an attempt to demonstrate before the Court that the injunction granted against the defendant No.1 of maintaining of status-quo in respect of the revenue record is also prejudicial to the appellant and the appellant can be said to be aggrieved party. Be that as it may, I do not find any substance in this appeal filed by the appellant. It cannot be said that the learned Judge has passed the impugned order on any irrelevant consideration. The learned Judge has exercised his sound discretion on the basis of the material available on record. Therefore, I do not find any reason to disturb the order of injunction passed by the learned Judge so far as the land bearing survey No.14 is concerned.
[6] Under the circumstances, this appeal is devoid of merits and is required to be rejected at the threshold and accordingly it is rejected.
[ C. L. SONI, J. ] vijay Top