IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6151 of 2012 For Approval and Signature:
HON'BLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No To be referred to the Reporter or 2 not ?
No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ===================================================== SHARADBHAI P RAMI & 1 - Petitioner(s) Versus SUBHASHBHAI P RAMI & 3 - Respondent(s) ===================================================== Appearance :
MR.MRUDUL M BAROT for Petitioner(s) : 1 - 2.MR DIPUM S RAMI for Petitioner(s) : 1 - 2.
Mr.Mihir H.Pathak for MR HASIT DILIP DAVE for Respondent(s) : 1, MS TRUSHA K PATEL for Respondent(s) : 2 - 4.
===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 14/09/2012 CAV JUDGMENT
1. Rule. Mr.Mihir H.Pathak, learned advocate waives service of notice of Rule for respondent No.1 and Ms.Trusha K.Patel, learned advocate waives service of notice of Rule for respondents Nos.2 to 4.
2. On the facts and in the circumstances of the case and with the consent of the learned counsel for the respective parties, the petition is being heard and finally decided.
3. The present petition under Articles 226 and 227 of the Constitution of India has been preferred by the petitioners challenging the order dated 13-04-2011 passed by the learned Principal Civil Judge, Ahmedabad (Rural) (the Trial Court) below the application for grant of injunction at Exh.5, in Special Civil Suit No.74 of 2005, and the order dated 10-04-2012 passed by the learned Addl. District Judge, Ahmedabad (Rural) (the Appellate Court) in Civil Misc. Appeal No.30 of 2011 below Exh.15, whereby the appeal filed by the petitioners against the order of the Trial Court, has been rejected.
4. The brief facts of the case as emerging from the material on record are that Jamnaben Premjibhai Rami, who was the mother of the present petitioners and respondent No.1 and deceased Rajendrabhai, the husband of respondent No.2, instituted the above-mentioned Suit against deceased Rajendrabhai's wife Sheelaben, respondent No.2 herein, and her two sons, respondents Nos.3 and 4, on 16-04-2005. Jamnaben had become the owner in possession of certain properties on the basis of a family partition, including Survey Nos.275 and 280 situated at village Okaf. The properties comprising the above-mentioned Survey Numbers were gifted by Jamnaben to her son Rajendrabhai, predecessor-in-title of respondents Nos.2 and 4, by a registered Gift Deed dated 10-08-2001. Jamnaben had been living with her son Rajendrabhai since 1989, and continued to do so till the death of Rajendrabhai, on 11-10-2003. Thereafter, on 25-10-2003 Jamnaben went to reside with her son Subhashbhai, present respondent No.1. On 16-4-2005, Jamnaben, at the age of about 90 years, filed the Suit against the wife and two sons of her deceased son Rajendrabhai, present respondents Nos.2 and 4, taking a plea that while she was residing with deceased Rajendrabhai, she was confined, coerced and threatened by him with a view to grabbing her property, to execute a Gift Deed for Survey Nos.275 and 280. In the Suit, Jamnaben has prayed for grant of a permanent injunction and declaration to the effect that the said Gift Deed was not binding upon her, having been obtained by coercion and is null and void. Along with the Suit, an application for grant of temporary injunction at Exh.5 was filed, praying for directions to restrain respondents Nos.2 and 4 from transferring or alienating the property in question, till the final disposal of the Suit. Jamnaben died on 08-02-2008. After her death, her sons Sharadbhai (petitioner No.1), Amrutbhai (petitioner No.2) and Subhashbhai (respondent No.1) filed separate applications to be joined as her legal heirs in the Suit. The same were allowed by the Trial Court. The application for grant of injunction at Exh.5 came to be rejected by the Trial Court, by judgment dated 13- 04-2011. An appeal was filed by the petitioners, against the judgment of the Trial Court, which has been rejected by the Appellate Court by judgment dated 10-04-2012. Aggrieved by both the above-mentioned judgments, the petitioners are before this Court by way of the present petition.
5. It has been submitted by Mr.Mrudul M.Barot, learned advocate for the petitioners that the judgments of the Trial Court and Appellate Court are against facts and law, as both the Courts below have erred in not considering that the possession of the land in question is with the petitioners. This has also been admitted by respondents Nos.2 to 4 in their written statement.
5.1 It is further submitted that the Appellate Court has erroneously arrived at a conclusion that the thumb impression of Jamnaben on the Gift Deeds is not disputed. The petitioners have filed an application at Exh.117 for signature verification and production, hence this aspect is not yet concluded. It is submitted that in view of these erroneous findings, the matter should be remanded to the Appellate Court.
5.2 It is next submitted on behalf of the petitioners that an order of status-quo was passed by the Trial Court on the application of the petitioners, on 03-09- 2010. Though it stood vacated upon dismissal of the application at Exh.5 by the Trial Court, status-quo has continued pending appeal and even before this Court. If the said order is lifted, it will give rise to multiplicity of litigation. That in any case, the status quo order ought to be continued as the petitioners are in possession.
5.3 It is further contended that the Gift-Deed has been obtained by fraud, as Jamnaben was of unsound mind and could not understand the Gujarati language. This aspect is clear from the plaint of the previous Suit wherein it is so mentioned. It is submitted that the Courts below have placed undue reliance on the consent decree in the previous Suit. At that time, Jamnaben was of unsound mind and even otherwise the said consent decree is not executable as per the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act,1947.
5.4 Lastly, it is submitted that the Courts below irreparable loss that cannot be compensated in terms of money if an injunction is not granted. If the prayers made by the petitioners are not granted, they would lose possession over the land in question, causing irreparable loss. It is,therefore, prayed that the petition be allowed.
5.5 In support of the above submissions, learned advocate for the petitioners has placed reliance upon the flowing judgments:
(a) Sawarni (Smt) v. Inder Kaur (Smt), (1996) 6 SCC 223
(b) Krishna Mohan Kul v. Pratima Maity, (2004) 9 SCC 468
(c) Smt. Kishen Kunwar v. Ajay Tewari, AIR 2004 Calcutta 149
(d) State of M.P. v. Brijesh Kumar Awasthi, AIR 1997 SC 2104 6 Mr.Mihir H.Pathak, learned advocate for Mr.Hasit Dilip Dave on behalf of respondent No.1 has submitted that the said respondent is a formal party, but has added that the interest of said respondent is the same as that of the petitioners. He has submitted that the status quo order in favour of the petitioners may not be lifted, as respondent Nos.2 and 4 would then sell the property which ought to be preserved, pending Suit. No submissions on merits have been advanced on behalf of respondent No.1.
7. The petition has been strongly opposed by Ms.Trusha K.Patel learned advocate for respondents Nos.2 to 4. It is submitted that the present Suit has been filed in the name of Jamnaben who was 90 years old at the time of its institution, at the instance of respondent No.1 who has a dispute against respondents Nos.2 to 4 who are the wife and sons of his deceased brother Rajendrabhai. Jamnaben had resided with Rajendrabhai for three decades. After Rajendrabhai's death she went to live with respondent No.1 who has taken her thumb impression and filed the Suit.
7.1 It is further submitted that in the year 1979 there was a family partition between Jamnaben and her sons whereby the lands inherited by Jamnaben from her late husband were distributed amongst them. Jamnaben retained only 5 pieces of land. All family members became separate owners of the lands falling in their respective shares. That, on 18-06-1996 Jamnaben and Rajendrabhai filed Civil Suit No.505 of 1996 challenging certain aspects of the partition wherein all the other sons of Jamnaben were defendants. On 25-09-1996 a consent Decree was passed in the Suit whereby parties agreed that all the disputed lands would go to the share of Jamnaben. It is further submitted that on 10-08-2001, when Jamnaben was about 81 years of age, she executed the Gift-Deed in question, whereby the lands in her share were gifted to Rajendrabhai. There was a dispute regarding one piece of land which had purportedly been purchased by petitioner No.1 through his Power of Attorney, who was his own wife. It is contended that Jamnaben issued a public notice on 26-02-2002 stating that she had not given the said Power of Attorney and that the Gift- Deed executed by her in favour of Rajendrabhai was a valid one. Respondent No.1 filed Civil Suit No.144 of 2002 challenging the said Gift-Deed. Deceased Rajendrabhai, predecessor-in-interest of respondents Nos.2 to 4 filed Civil Suit No.56 of 2002 challenging another Gift Deed for land bearing Survey No.438 in favour of respondent No.1. Another Suit, being Civil Suit No.75 of 2003 was filed by respondent No.1 against Jamnaben and Rejendrabhai on the ground that Jamnaben had no authority to execute the Gift-Deed that is the subject matter of the present Suit from which these proceedings arise.
7.2 It is submitted that all the above Civil Suits ended in a compromise between the parties in the Year 2004, whereby all parties accepted the Gift-Deed in favour of Rajendrabhai. It is contended that the present Suit has been filed in the name of Jamnaben only after the death of Rajendrabhai, when she went to live with petitioner No.1. It cannot be believed that at the age of 90 years a mother would file a Suit against the heirs of her deceased son with whom she had lived for over three decades, when throughout her lifetime Jamnaben had always supported Rajendrabhai who took good care of her.
7.3 It is next submitted that it is wrong to say that the possession of the property in dispute is with the petitioners, as on the day on which the Gift Deed was executed, Jamnaben had sworn an affidavit to the effect that possession of the said properties is with Rajendrabhai. That, there is not a single statement in the plaint to the effect that the petitioners are in possession. Respondents Nos.2 to 4 have never admitted the possession of the petitioners at any stage. Respondent No.2 has only stated in the written statement that some unauthorised persons have constructed huts on the land at the behest of the petitioners and respondent No.1, in order to cause harassment. This cannot be construed as an admission.
7.4 It is further submitted that the Suit itself is time-barred and an injunction, as sought by the petitioners, has been rightly refused by both the Courts below.
7.5 It is contended that the consent decrees passed in the Suits have not been challenged in the present Suit. Jamnaben has herself accepted the Gift-Deed in favour of Rajendrabhai by way of the consent decree. The petitioners and respondent No.1 have been joined in the present Suit as heirs of Jamnaben, and not in their individual capacity, therefore, they cannot take a different stand from the one taken by Jamnaben.
7.6 It is emphatically urged that both the Courts below have rendered concurrent findings of fact that respondent Nos.2 to 4 are in possession. Further, both the Courts below have also found that the petitioners do not have a prima facie case, the balance of convenience is not in their favour and they would not suffer irreparable loss that cannot be compensated in terms of money if an injunction is not granted in their favour. The above findings have been arrived at on the basis of the material on record and may not be interfered with by this Court.
7.7 Regarding continuance of the order of status quo, it is submitted that the Suit was filed in the year 2005. Jamnaben died in 2008 and petitioners were joined as her legal heirs in the year 2010. Till then, there was no order of status quo. In the year 2010, the petitioners, in connivance with the then lawyer of respondents Nos.2 to 4, obtained an endorsement on the application for status quo that there is no objection to grant of a status quo order. The status quo order was passed on the basis of this endorsement and not on merits. Now that as both the Trial Court and Appellate Court have rendered concurrent findings against grant of an injunction, there is no legal justification for continuing the order of status quo.
7.8 It is next submitted that in the plaint Jamnaben has not disputed her thumb impression, though it is stated that it was obtained by coercion. The petitioners have been joined in the Suit as legal heirs of Jamnaben, therefore, they cannot now say that her thumb impression is disputed. That the petitioners have filed an application for verification of the thumb impression only after the death of Jamnaben, who never disputed it in her life time.
7.9. Lastly, it is submitted that there are concurrent findings of fact based upon evidence on record against the petitioners which ought to be maintained by this Court, especially as the judgments of both the Courts below do not suffer from any legal infirmity or perversity.
7.10 It is, therefore, prayed on behalf of respondents Nos.2 to 4 that the petition be dismissed.
7.11 In support of her submissions, learned counsel for respondents Nos.2 to 4 has placed reliance upon the following judgments.
(a) Lalubhai Hirabhai Patel v. Indo-Japan Industries, 2001(1) GLH 77
(b) Veetrag Holding Company Ltd. v. Gujarat State Textile Corporation Ltd., 1996 (3) GLR 536
(c) Navalram Laxmidas Devmurari v. Vijayaben Jayvantbhai Chavda, 1997(2) GLR 1755
(d) Judgment dated 15-10-2008 in Special Civil Application No.12549 of 2008
(e) Gujarat Electricity Board, Gandhinagar v. M/s.
Maheshkumar & Co.,Ahmedabad, AIR 1982 Gujarat 289.
8. I have heard learned counsel for the respective parties at length and perused the impugned judgments and other material on record. At this stage, the Court is called upon to examine the legality and validity of the judgment of the Trial Court vide which the temporary injunction sought by the petitioners pending Suit has been refused, as well as the judgment of the Appellate Court, confirming the judgment of the Trial Court. From the record it appears that there is a long history of litigation inter-se between the parties who are all family members. Several documents, and even Wills, appear to have been executed by Jamnaben in favour of various family members,some of which are later disputed or revoked. For the purpose of this petition,the Gift Deed for Survey Nos.275 and 280 of Village Okaf is the only relevant document.
9. In the litigation that took place amongst the family members, a consent decree was passed in Special Civil Suit No.75 of 2003, whereby all family members and parties to the litigations including deceased Jamnaben, the petitioners and respondent No.1 accepted the Gift Deed in favour of Rajendrabhai that is now disputed in the Civil Suit from which the present proceedings arise. As Rajendrabhai died on 11.10.2003, the lands comprising the Gift Deed were mutated in the names of respondents Nos.2 to 4, his legal heirs, in the revenue records. It is not disputed that Jamnaben was residing with Rajendrabhai upto his death. Thereafter, she went to live with respondent No.1. She filed the Suit on 16.04.2005, wherein the petitioners and respondent No.1 have been joined as her legal heirs in the year 2010.
10. It has been noticed by the Appellate Court that though the petitioners have been joined in the Suit as legal heirs of Jamnaben, they have filed the appeal as though they are the original plaintiffs in their own right and not the legal heirs of the original plaintiff, and respondent No.1 has also been joined as though he is also an original plaintiff.
11. It has been noted by both the Courts below that the Gift-Deed in question, is a registered one. It bears the thumb impression of the donor, Jamnaben. The said Deed has been executed before two attesting witnesses. In the Suit, Jamnaben has stated that she was influenced and coerced into executing the Gift- Deed by Rajendrabhai and made to put her thumb impression upon it. It is stated by Jamnaben in the Plaint that she is illiterate and is not conversant with the Gujarati language. It is further stated that thirteen days after the death of Rajendrabhai, respondents Nos.2 to 4 have driven her out of the house and she went to live with respondent No.1. The Gift-Deed was executed on 10-08-2001. Rajendrabhai died on 11-10-2003, Jamnaben died on 08-02-2008, and the Suit has been filed on 16-04-2004.
12. It has been submitted by learned counsel for the petitioners that the Appellate Court has wrongly held that the thumb impression of Jamnaben on the Gift-Deed is not disputed and that the petitioners have filed an application for verification of the thumb impression. As regards this submission, a perusal of the plaint reveals that though Jamnaben has stated that she was coerced into putting her thumb impression on the Gift- Deed, she has nowhere said that it is not her thumb impression. Jamnaben was the original plaintiff and the petitioners have been joined in the Suit as her legal heirs, much later. During her life time, Jamnaben has not refuted her thumb-impression. The petitioners having joined in the Suit as her legal heirs, cannot go beyond the case put up by Jamnaben. The application filed by the petitioners for verification of the thumb-impression is dated 13.4.2010, that is after the death of Jamnaben. In view of the above, the submissions made by the learned advocate for the petitioners in this regard are not convincing.
13. Regarding the submission advanced by learned counsel for the petitioners to the effect that the petitioners are in possession of the property in dispute, both the Courts below have noticed that the consent decree whereby all parties have agreed that the Gift Deed in favour of Rajendrabhai is legal and proper and which has been accepted by all of them, has not been challenged till date. The consent decree was passed on 16.04.2004, after the death of Rajendrabhai but during the lifetime of Jamnaben. After passing of the consent decree the name of respondent No.2 the wife of deceased Rajendrabhai, was mutated in the revenue record. The Appellate Court, while confirming the findings of the Trial Court has found, prima facie, that the ownership, title and possession of the disputed lands is with respondents Nos.2 to 4. It has been specifically noted by the Appellate Court that the Gift Deed has been registered before the Sub-Registrar and attested by two witnesses, before whom Jamnaben has appended her thumb impression. Not only that, Jamnaben has also sworn an affidavit before the Sub-Registrar, stating that she has executed the Gift Deed voluntarily, independently and without being influenced by any person. The Appellate Court has further found that the revenue records in respect of the land in question which have been produced on record by the petitioners themselves, show that originally the name of Jamnaben was mutated in respect of the said land. Thereafter, Jamnaben had her name removed and the lands were running exclusively in the name of Rajendrabhai and his wife, respondent No.2. The mutation entry to this effect, being entry No.2189 dated 20.03.2003 has been certified. The Appellate Court has held that all the documentary evidence on record points to the factum of possession of the lands by respondents Nos.2 to 4, whereas the petitioners have not produced any evidence to the contrary.
14. It has been submitted on behalf of the petitioners that there is an admission in the written statement filed by the respondents No.2 to 4 that the petitioners are in possession. A perusal of the written statement reveals that respondents Nos.2 to 4 have stated that they are in possession of the land in question which is mutated in their names. Further, it is stated that with a view to causing harassment to respondents Nos.2 to 4, the petitioners have got constructed huts on the said land by some other persons and have produced photographs of them in the Suit, so as to falsely show the possession of the petitioners. There does not appear to be any averment in the Plaint amounting to an admission of possession of the petitioners. Ultimately,it is for the Trial Court to decide this issue in the Suit.
15. A perusal of the plaint shows that nowhere has the original plaintiff Jamnaben stated that the possession of the lands in question was not with Rajendrabhai and is not with the present respondents Nos.2 to 4. Both the Courts below have held that prima facie, the possession of the lands in question appears to be with respondents Nos.2 to 4. From perusal of the judgments of both the Courts below and the material on record it cannot be said that the concurrent findings rendered in this regard by both the Courts below suffer from any legal infirmity or error. The submissions made by learned counsel for the petitioners regarding possession are,therefore, without substance, especially as there does not appear to be any material in support of the same.
16. It has been submitted on behalf of the petitioners that the Gift-Deed has been obtained by fraud, coercion and undue influence. That Jamnaben was confined to the house by Rajendrabhai, who coerced her into executing the Gift Deed, which she did without understanding as she was illiterate and ignorant of the Gujarati language. It has also been stated that at the time of execution of the Gift Deed Jamnaben was of unsound mind. Whether the Gift Deed has been obtained by fraud, coercion or undue influence is a matter to be decided by the Trial Court after leading evidence. However, the submission made by learned counsel for the petitioners that Jamnaben was of unsound mind when the Gift Deed was executed appears to be a deviation from the case of Jamnaben herself, who has instituted the Suit. If taken at face value, such a submission would erode the case of the plaintiffs, not substantiate it.This submission does not appear to have been made by the petitioners before the Courts below and is, therefore, merely stated to be rejected.
17. It has been submitted on behalf of the petitioners that the status quo order qua the land in question, which is operating till date, be continued in order to avoid multiplicity of litigation. In this regard, it ought to be kept in mind that the initial order of status quo passed by the Trial Court was on the basis of an endorsement made by the lawyer of respondents Nos.2 to 4 that there was no objection to status quo being granted. It has been stated on behalf of respondents Nos.2 to 4 that the endorsement was made by their lawyer without their permission, after which the lawyer was changed. In any event, the status quo order has been passed only on the basis of the said endorsement as is clear from the order itself. The same stood vacated by the Trial Court after passing of the impugned judgment which has been confirmed by the Appellate Court. Both the impugned judgments are supported by cogent reasons based upon the material on record. At the stage of deciding an application for grant of a temporary injunction, the Trial Court would have to examine whether the petitioners have a prima-facie case, whether the balance of convenience is in their favour and whether they would suffer irreparable loss if such injunction is not granted. Both the Courts below have found, after thorough scrutiny of the evidence on record that prima-facie, as the factum of title,possession and ownership of the land in question is in favour of respondents Nos.2 to 4, there is no prima facie case in favour of the petitioners,the balance of convenience is not in their favour and neither would they suffer irreparable loss which cannot be compensated in terms of money, if an injunction is not granted to them.
18. Both the Courts below have specifically noticed that the petitioners and respondent No.1 have not challenged the consent decree whereby all parties, including Jamnaben, have accepted the very same Gift- Deed that has now been challenged in the Suit. In my view this is a pertinent aspect and has been correctly dealt with by the Courts below. It has also been noticed by the Appellate Court that the petitioners have not even mentioned the Gift Deed in the plaint but have suppressed this fact. A perusal of the plaint confirms the observations of the Appellate Court.
19. Regarding the submission on behalf of the petitioners that the Gift Deed has been obtained by fraud, coercion and undue influence, the Courts below have rightly held that this aspect is a matter that would require leading of evidence during trial.
20. Coming to the judgments cited by learned counsel for the respective parties, the petitioners have placed reliance upon Sawarni (Smt) v. Inder Kaur (Smt)(Supra) which is a case wherein the Supreme Court has held that a decision of title to immovable property without considering the Will is bad in law.
21. In the present case, no Will is in dispute in the Suit and the controversy centers around a Gift Deed. However, from the record it appears that Jamnaben, had executed certain Wills at some stage or the other, which have also been the bones of contention. One of the Wills is stated to have been revoked, whereas the petitioners have mentioned a Will in their plaint. Insofar as the Will, if any, is concerned, it is a matter for the Trial Court to decide in the Suit and would not have a bearing at this stage, when the only question before this Court is to consider the legality and validity of the judgments of the Courts below refusing to grant a temporary injunction to the petitioners. More so, as the Will is not the subject matter of the Suit from which the present proceedings arise.
22. In Krishna Mohan Kul v. Pratima Maity (Supra) the Supreme Court has held that a person standing in a fiduciary relationship with another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. In that case the executant of the Deed was stated to be more than 100 years of age, was bed ridden with paralysis and not of sound physical and mental condition. This judgment is cited by learned counsel for the plaintiff in an attempt to draw a parallel with Jamnaben who must have been about 81 years of age when the Gift Deed was executed. As stated hereinabove, undue influence, coercion and fraud are aspects that must be proved at the trial. This judgment, therefore, would have no bearing at the present stage.
23. The Calcutta High Court in Smt. Kishen Kunwar v.
Ajay Tewari (Supra), has held that vacation of the status quo order would result into multiplicity of litigation if the defendants went on for construction on the suit property. In that case also, a Gift Deed had been impugned. The Calcutta High Court was dealing with a revision application and came to the above conclusion on the basis of the recitals in the Gift Deed, and not on any principle of law. In paragraph 5 of the same judgment it has been held that the burden to prove a prima facie case is on the plaintiffs. In the present case the petitioners have failed to prove a prima facie case before both the Courts below, therefore, this judgment would not be helpful to the petitioners.
24. In State of M.P. v. Brijesh Kumar Awasthi (Supra) the Supreme Court has held, on the facts of that case, that it was not proper to refuse an injunction in a Suit by the State for declaration and for setting aside a decree on the ground of fraud. This judgment pertains to a Civil Suit and not to a case for grant of an interim injunction and that too in the background of the peculiar facts obtaining therein. The present is a case where grant of a temporary injunction is in issue, and the plaintiffs would have to establish the factors of prima facie case, balance of convenience and irreparable loss, which they have been unsuccessful in doing before both the Courts below. This judgment would also not carry the case of the petitioners any further.
25. The judgments relied upon by learned counsel for respondents Nos.2 to 4 may now be noticed. In Lalubhai Hirabhai Patel v. Indo-Japan Industries (Supra), this Court has held that a Suit filed after 11 years is time-barred. This judgment is sought to be pressed into service in order to elaborate the point that the Suit itself is time-barred. This is an aspect that has to be decided by the Trial Court, therefore, this judgment would not be relevant at this stage.
26. Veetrag Holding Company Ltd. v. Gujarat State Textile Corporation Ltd. (Supra) is also a judgment of this Court wherein it has been held that delay in filing a Suit would disentitle the plaintiff to grant of equitable relief. As stated earlier, the issue of delay and its effect,if any, is to be examined by the Trial Court. In the present case, both the Courts below have refused the injunction on the grounds that the petitioners have been unable to satisfy the requirements of a prima facie case, balance of convenience and suffering of irreparable loss if the same is denied. Delay is not a factor upon which the injunction has been refused, therefore, this Court does not consider it necessary to go into this aspect.
27. The judgment in Navalram Laxmidas Devmurari v.
Vijayaben Jayvantbhai Chavda (Supra) has been cited by learned counsel for respondents Nos.2 to 4 on the point of possession. The Court has discussed the concept of possession and has applied it to the facts of that case. In the present case, both the Courts below have, prima facie, found that possession of the land in question is with respondent Nos.2 to 4. At this stage there is no requirement of going deeper into this question, especially when it is found by this Court that the judgments of both the Courts below are not vitiated by any error of jurisdiction or law. This judgment, therefore, need not be considered at this stage.
28. Reliance has also been placed on an unreported judgment of this Court in Special Civil Application No.12549 of 2008 dated 15-10-2008. In this case, the plaintiffs were unsuccessful in getting an injunction upon their application at Exh.5, as also in the Appellate Court. This Court held that when the Suit has been filed after a long period of time, the plaintiffs are not entitled to equitable relief. As stated hereinabove, delay is a factor that is to be looked into by the Trial Court. In the present case, delay is not one of the grounds on which the injunction has been refused. In the very judgment, the Court has held that just because an order of status quo has continued since 2005, it is not a ground to continue it any further if it is found that no case is made out by the plaintiffs for grant of interim injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code.
29. In the present case as well, as the petitioners have been unable to establish a prima facie case, balance of convenience and irreparable loss before both the Courts below, this Court does not see any reason or justification for continuing the order of status quo any further, in the face of the detailed and cogent reasons rendered by both the Courts below in the impugned judgments.
30. In Gujarat Electricity Board, Gandhinagar v.
M/s. Maheshkumar & Co.,Ahmedabad (Supra) this Court has held that mere possibility of multiplicity of litigation is not a ground for grant of injunction. In the present case, the Courts below have rejected the application/appeal of the petitioners for grant of temporary injunction pending Suit by giving clear findings based upon the material on record. When this Court has already expressed a view that the findings of both the Trial Court and Appellate Court do not deserve interference, the plea of multiplicity of litigation cannot be permitted to be used to brush aside such findings that have been arrived at after scrutiny of the material on record. When the petitioners have been unable to establish the factors that are essential for grant of a temporary injunction under Order 39 Rules 1 and 2 of the Civil Procedure Code, the order of status quo that is in operation cannot be continued on the ground that vacation thereof would result in multiplicity of proceedings.
31. It is strange that on one hand the petitioners are demanding that the matter be remanded, as submitted by learned counsel on their behalf, and on the other hand an argument is advanced that the order of status quo be continued. Both arguments appear to be inconsistent. The Court is called upon to decide the petition on merits, therefore, an order of status quo pending final decision would not continue to operate if such decision goes against the petitioners. Conversely, learned counsel for the petitioners has failed to establish any cogent or persuasive grounds for remand of the matter.
32. The cumulative effect of the above discussion is that, viewed from all angles, the petitioners have been unsuccessful in pointing out or establishing any legal infirmity or error of jurisdiction in both the impugned judgments of the Trial Court and Appellate Court, so as to persuade this Court to interfere in exercise of power under Articles 226 and 227 of the Constitution of India.
33. In the above circumstances the petition, being devoid of merit, deserves to be rejected and is rejected. Rule is discharged. Ad-interim relief granted earlier, shall stand vacated. Parties shall bear their own costs.
As a note of caution it is made clear that any transaction qua the land in question entered into by the parties shall be subject to the final outcome of the Suit. The petitioners can move the Trial Court for expeditious hearing of the Suit, if they so desire. It is further clarified that the observations made by this Court are of a prima facie nature and shall not be taken as an expression of final opinion by the Trial Court, while deciding the Suit.
arg (Smt.Abhilasha Kumari,J) Mr.Mrudul M. Barot, learned advocate for the petitioners prays for stay of this judgment. In view of the reasons stated in the judgment, the request is declined.
(Smt.Abhilasha Kumari,J) arg