1. Rule. Learned advocate for the respondents waives service of rule.
2. The present appellant is the original plaintiff who has filed Civil Suit No. 12 of 2006 in the Court of learned Principal Senior Civil Judge, Gandevi for a decree of specific performance of contract of an agreement to sell dated 28th July 2000 as also for permanent injunction in respect to the suit land bearing Block No. 1827 situated in village Kukeri of Chikli Taluka of District Navsari admeasuring Hector :RA :Prati RA :23483 and also for damages.
3. An application was also preferred seeking injunction against the respondent No. 1 to 4 restraining them from selling, transferring, mortgaging alienating etc. in any manner the said property and further restraining respondents from disturbing the peaceful possession of the suit land.
4. The learned Principal Civil Judge, Gandevi vide its order dated 29th July 2006 rejected the injunction application on the ground that the respondents were not the owners of the land and the new purchasers had been joined as party respondents. It concluded that the appellant was not in possession of the suit land and the respondent had better title than that of appellant.
5. The orders was assailed by filing Appeal from Order No.
226/2006 before this Court. And in the meantime application for bringing new purchasers was preferred before the Trial Court. The Appeal from Order was withdrawn with a permission to make a fresh application against new purchasers under Order 39 Rule 4 of the C.P.C. A fresh application Exh. 58 was preferred for temporary injunction restraining the respondent No. 5 and 6 herein from transferring in any manner the suit land till the final disposal of the Civil Suit. This application was dismissed by the Trial Court on 28th November 2011. An injunction application by respondent Nos. 5 and 6 restraining the present appellant and other respondents from interfering with their possession was preferred in Regular Civil Suit No. 29/06 before learned Principal Civil Judge Chikli in respect of suit land which was allowed and noting that fact and other grounds, application for injunction preferred by this appellant came to be rejected.
6. The impugned order passed below Exh. 58 in the Special Civil Suit No. 12/06 is challenged in the present appeal.
7. It would be relevant to understand the controversy between the parties by dilating facts at this stage.
8. The appellant is the agriculturist who is cultivating his own land and also the land belonging to respondents No. 1 to 4. An agreement to sell was executed on 28th July 2000 by and between the appellant and respondent No 3 for two properties namely properties at village Ranveri Khurd being block No. 447 and the property situated at village Kukeri, being block no. 1827 (suit land ) which the appellant was already cultivating for the sale consideration of Rs 6,25,000/ in the manner as stipulated in the agreement to sale deed. It is the say of the appellant that he was put in possession of the suit land and since then he is cultivating the same.
9. The sale deed in respect of the property situated at Ranveri Khurd was to be executed for sale consideration of Rs 1,10,000/ and the same was done on 31st January 2001. Further stipulation in this agreement was in respect of the suit land where execution of sale deed was to be done within five years thereafter. The seller was made liable for penalty of Rs 3000/ for each day of default from the date of receipt of entire sale consideration, in case there is any laxity on the part of the seller to execute the registered sale deed. It is the say of the appellant that the respondent No. 1 to 4 since evaded the execution, he issued the notice dated 19th April 2006 upon these respondents calling upon them to act in accordance with law. As they did not pay any heed to such legal notice, Special Civil Suit was filed, as mentioned hereinabove. The respondents on notice produced the registered sale deed executed by the respondent No.1 in favour of respondents Nos 5 and 6 where they also produced public advertisement issued by the respondent Nos 5 and 6 inviting objections before purchasing the suit land. The respondents Nos 5 and 6 as mentioned earlier also filed Regular Civil Suit No. 29/06 seeking injunction in respect of the suit land on the basis of the registered sale deed executed in their favour by respondents Nos 1 to 4. It was further contended that an agreement to sale was executed by only respondent No. 2 whereas all the respondents Nos 1 to 4 were in fact the co owners.
10. These contention issues, led the Court to deny relief of injunction, as sought for by the appellant.
11. Learned advocate Mr. Zubin Bharda appearing for the appellant urged that for two different lands one of the Ranveri and another of Kukeri, this agreement to sale was executed on 28th July 2000 and registered sale deed in respect of one of these lands has already been executed on 31st January 2001. One of the stipulations in this agreement is to get the sale deed done within five years after the consideration is paid. He further urged that the only reason why application for injunction is disallowed is that the public notice issued by respondents No. 5 and 6 before purchase of suit land was not responded to by the appellant. He admitted that the same was the mistake on the part of the appellant but, if plaintiff otherwise can prove prima facie case, non response to public notice alone should not be a ground to reject the request for injunction. He pointed out from the government correspondence as to how with such permission, underground pipeline has been laid. It is further urged that the panchanama drawn in the presence of the labourers, documents concerning waterline and electric line, etc the trial court has not considered. He further urged that an agreement to sale also reflects payment of consideration by way of cheques and the registered sale deed was effected for the land situated at Ranveri for a sum of Rs1,10,000/, other amount of consideration is for the land in question and that aspect is not considered by the trial court.
12. Mr. Mukesh Rathod, learned advocate appearing for all the respondents on caveat emphasised on the findings of the trial court to submit that the order is absolutely justifiable and there is nothing which would call for any interference. He also drew attention of this Court to the public notice issued on 27th March 2006 and stated that a notice was issued on 19th April 2006 by the appellant to the original owners which was an afterthought. Moreover, the panchnama of Court commissioner cannot be used for substantiating the claim of eitherside.
13. Having thus considered, elaborate submissions of both the sides and careful consideration of the order of the trial court along with documents brought on record, would lead to the modification on the order for the reasons hereinafter.
14. As can be seen from the order of the trial court, it has extensively noted the documentary evidence produced by both the sides but it mainly relied on four sets of documents (I) agreement to sale entered into by and between the parties (ii) public notice (iii) documents pertaining to Ranveri land being block no. 447 and (iv) documents pertaining to suit land situated at Kukeri village being block no. 1827. The trial Court disbelieved allegation of respondents that an agreement to sale was manipulated. It also noted that pursuant to such an agreement to sale, the sale deed was registered on 31st January 2001 in respect of land situated at Ranveri and, in the registered deed land there is reference to Kukeri land. What is further emphasised by the Court is the fact that when public notice was issued on 27th March 2006, before the sale deed was registered by respondent No 1 to 4 in favour of respondents nos 5 to 6 on 24th April 2006, there was no response from the present appellant and no steps were taken by the appellant for getting document registered in its name. The Court held both the defendants Nos 5 and 6 as bonafide purchasers for value without notice. Thus, it also noted that since the property mentioned in the public notice was sold and when the sale deed was executed in favour of the respondent Nos 5 and 6, it did not deem it appropriate to grant an injunction in favour of the present appellant. It reiteratively mentioned that there is no doubt with regard to the genuineness of agreement to sale. Thus, on having held the respondents Nos 5 and 6 as bonafide purchasers in whose favour of the document has been executed after issuance of the public notice, no relief came to be granted in favour of the present appellant, and therefore, all the three ingredients, prima facie case, balance of convenience, as also the irreparable loss, are held in favour of the respondents Nos 5 and 6.
15. It is required to be mentioned that agreement to sale executed on 28th July 2000 is with possession. It is on a Rs 50 stamp paper and the same refers to both the lands situated at Ranveri and Kukeri. In the first installment, a sum of Rs 3 lakhs had been paid in cash on 4th August 2000. Thereafter, a sum of Rs 1,50,000/ was paid by two different cheques both Bank of Baroda Chapeldara Bilimora branch. Then, the amount of Rs 1,65,000 is reflected on the said document as having been paid in cash on 25th October 2000. The agreement to sale indicates that a sum of Rs 6,25,000/ has been paid as sale consideration for both the lands and land bearing Block No. 447 of village Ranveri Khurd was purchased for Rs 1,10,000/ whereas, for Kukeri, Rs 5,15,000/. This agreement also clearly mentions that the peaceful possession of both the lands have been handed over to the appellant. It is also mentioned that once total amount of sale consideration is paid up by the purchaser, the respondent shall execute the sale deed in favour of the appellant. This agreement to sale of course has been executed between the present appellant, and Shri Udaykumar Vidhyasagar, respondent No. 3. Whereas, the registered sale deed which has been executed for Ranveri land was done on 31st January 2001, which is signed by respondent No. 3 and the present appellant. both. The same was executed in the name of all the three sons of the appellant. The trial Court strangely emphasised that there is no reference of Kukeri land in the said registered deed. As such there is no such need as it was registered sale deed pertinent to Ranveri land, and therefore, there cannot be reference of land or of any past transaction in the registered sale deed of any land other than the particular land. Again pursuant to agreement to sale in respect of both the lands having repurchase of both the lands when document was executed for one of them. Nonreference of Kukeri land (suit land) cannot be the ground for nonbelieving the case of the appellant.
16. Yet another aspect that has weighed with the Court is in action on the part of the present petitioner in getting registered sale deed done of the suit land, being block no. 1827. After the public notice was given on 27th March 2006, registration of the sale deed in favour of respondents No. 5 and 6 was done on 24th April 2006. Thus, the injunction application filed in a suit preferred on 1st May 2006 was denied as the document created a right in favour of defendant Nos 5 and 6, who are held to be the purchasers for value without notice. As mentioned hereiabove, the Court all along did believe genuiness of the agreement to sell but qua the respondent No. 5/6.
17. References needed to be made to various affidavits filed by agriculturists of adjoining and surrounding lands. These affidavits prima facie go to suggest that the appellant herein is tilling the disputed land for the suit land and continues to enjoy the peaceful possession of the same. There are also affidavits adduced in favour of the present appellant by stating therein that respondents, and panchas did come towards the suit land beyond on 3rd May 2006 when the Court Commissioner was to visit the said land to draw panchnama and passed by the land in a motorcar but respondents never stopped near the suit land. They straightaway went to the place of Jaising Narsingh Parmar. The Court commissioner also called for them but they never attended and therefore. both the panchas namely Amarsingh, Ibrahim volunteered to be there. The panchers and the Court commissioner recorded all details which were existing in the suit land and also drew a map which also reflects the underground pipeline from one portion of land to another person who went to call the respondents for remaining present also filed his affidavit in support of the petitioner. The sum and substance of all these affidavits is that the appellant is said to be in peaceful possession and panchnama drawn by the Court Commissioner also further vindicated that stand. It shows the crop of sugarcane and other grown up trees and an underground line of water arriving at this field from block No. 2026. The labourers and the animals were also found with machineries and instruments meant for agriculture. The labourers are employed by the present appellant. Respondent No. 1 denied to remain present at the place of incident although he was particularly asked to so do it. The report of the Court Commissioner dated 4th May 2006 reiterates this aspect. Certain documents are abstracts of Village Form 7/12, which are suggestive of the delivery of sugarcane from this land and the survey number mentioned in this delivery challan 1827. The farmers is the present appellant. These challans are of the period of 2008 and 2009 as well which is subsequently to the filing of the suit. Various letters of Sahkari Khand Udyog Mandal Ltd. Gandevi are addressed to the present appellant, requesting him to provide the sugarcane. However, Village Form No. 7/12 reflects the name of Prafulkumar Jethabhai Patel, Yogeshkumar Vidyasagar Patel, Udaykumar Vidyasagar and Ajaykumar Patel.
18. In all these details cumulatively go to suggest prima facie that the possession of the suit land is that of the plaintiff. Of course, he did not make any move for getting registered sale deed executed in his favour despite there being an agreement to sale.
19. The question that would arise as to whether for divided share respondent No. 3 can alone execute an agreement to sale in favour of the present petitioner since Section 44 of the Transfer Property Act permits the same and the same would not nullify the action unless challenged by others. Moreover, that is not a ground raised for not executing the claim of the petitioner. According to the respondents, the original owner that all these years the petitioner never showed any vigilance and therefore that transfered the land in the name of respondent No. 5 and 6. This stand is severely resisted by the appellants. The question in such circumstances would be that pending the trial of various contentious issues when the petitioner had been found to be in possession at a prima facie level should the same be protected in this litigation and answer must be in affirmative.
20. What Court needs to regard in the aforementioned glaring facts is not the ownership at this stage for deciding the application for injunction particularly in wake of execution of part of such agreement. The appellants herein are in the settled possession of the property from the year 2000, pursuant to the said agreement to sale executed in favour of the appellant in respect of both the lands of Ranveri and Kukeri. As mentioned hereinabove, the registered sale deed of one of the lands situated at Ranveri has already been executed without a murmer and this document is indicative of part, consideration in respect of the land in question also having been accepted coupled with the fact that when physical possession of the property has been handed over pursuant to such agreement to sale, for other land as well even if it is believed that the opponents would eventually may prove better title over the present appellant, at prima facie stage with aforementioned overwhelming evidences, the appellant cannot be permitted to be dispossessed without following due process of law.
21. Ordinarily the title follows the possession and Courts of equity would help those who help themselves. In the instant appeal, on having found the opponents No. 1 to 4 having enjoyed the sale consideration in respect of suit land and having handed over possession of the land since 2000, there is a need to intervene. Panchnama of Court Commissioner is to elucidate the facts in question and not for creating evidence, however, plaintiff appellant could establish prima facie his possession by various documents as also from the affidavits which otherside does not succeed to refute, leading the Court to protect the possession at this stage.
22. Moreover, the appellant original plaintiffs have raised various contentious issues which require the trial and till then, the possession of the plaintiff appellant which it proved prima facie requires protection by way of injunction and in the aforementioned circumstances, this appeal needs to be allowed. The order of the trial court consequently is quashed and set aside passed below application for injunction rejecting the request of grant of protection of the appellant in a suit for specific performance of agreement to sale.
23. At the same time equity would demand that the appellant also is directed not to create any new right pending the trial of this suit in respect of suit land resulting into multiplicity of proceedings.
24. Trial of this suit is directed to be expedited and the trial court may preferably dispose of the same within 12 months from today.
25. Rule is made absolute in the above terms and appeal stands disposed of accordingly.
(Ms. Sonia Gokani,J.) mary//