1. This appeal from order is filed by the present appellant-original defendant no.6 challenging the order dated 20.9.2010 passed by the 4th Additional Senior Civil Judge, Ahmedabad (Rural) below Exh.5 in Special Civil Suit No.95 of 2007, whereby the learned Judge has partly allowed the application at Exh.5 filed by the respondent no.1-original plaintiff in the main suit, and has confirmed the ad-interim order dated 12.4.2007 of maintenance of status quo of the suit premises, till the final disposal of the suit. The parties are referred to as the plaintiff and defendants for the sake of convenience.
2. The facts leading to the filing of this appeal are such that the plaintiff filed a suit stating that the owners of the land had executed Banakhat dated 13.12.1996 in his favour which came to be registered before the appropriate authority. He also stated that he paid an amount of Rs.7.50 lacs as Banakhat amount and as per the said agreement, the value of the land was agreed at Rs.2200/- per sq.yard and that the duration of the Banakhat was six months within which the owners of the property had to obtain necessary permissions including the title clearance certificate for the subject land to enable the plaintiff to buy the said property from the owners. He submits that the owners failed to perform their part of obligation and despite the fact, he paid the balance amount of sale consideration and the owners handed over possession of the subject land to him by executing three “possession agreements” dated 12.6.1996. He further submits that the plaintiff made a search in the revenue office on 14.12.2004 and came to know that in the revenue records the name of one “Ramasagar Co-op.Hou.Soc.Ltd.is there and the said
Ahmedabad and the same was withdrawn as the said Court did not have the territorial jurisdiction to try the suit. Thereafter, the plaintiff filed Special Civil Suit No.95 of 2007 before the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural). In the said suit, initially an ex-parte interim relief was granted on 12.4.2007 directing the defendants in the suit to maintain status-quo qua the suit property. Thereafter, vide impugned order passed below Exh.5 on 20.9.2010 the said order came to be confirmed till the final disposal of the suit. Hence, this appeal.
3. Heard learned advocates for the parties.
4. Learned advocate Mr.Gandhi for the appellant herein-original defendant no.6 submits that defendants no.1 to 3 executed three different sale deeds in favour of defendant no.4-society and as per the sale deeds, possession was handed over to defendant no.4. The index is also produced before the trial Court which supports the registered sale deeds for the land (the same land for which the plaintiff is claiming). Thereupon, defendant no.4 entered into agreement to sell on 14.8.2004 with defendant no.6 and thereafter executed the sale deed on 19.12.2005 in favour of defendant no.6. The defendant no.6 has purchased the said property by carrying search from the Sub- Registrar office as well as by giving public notice. Thereupon, defendant no.6 carried out the construction and after obtaining permission from AUDA as well as the permission from other competent authority, constructed the flats and allotted to different persons who were not party to the suit. The plaintiff came with the case that defendants no.1 to 3 executed registered agreement to sell in favour of the plaintiff which is dated 13.12.1996. The possession receipt was also placed on record before the trial Court which is dated 12.6.1996 which shows that prior to agreement to sale, the possession was handed over to the plaintiff by defendants no.1 to 3. He further submits that the plaintiff is claiming his rights pursuant to Banakhat dated 13.12.1996 whereas the owners of the subject land had already sold the land to the society by registered sale deeds dated 17.2.1995 and had already handed over the possession of the suit property to the society pursuant to the said sale deeds and therefore the said documents are questionable and the trial Court has not considered the same and by that committed error in granting the injunction application. He also submits that considering the dates of the documents, no explanation has been given by the plaintiff for filing suit at belated stage and when substantial delay is caused, then the plaintiff is not entitled to get any relief of injunction and therefore this appeal is required to be allowed.
5. Learned advocate Mr.Pandya for respondent no.1-plaintiff submits that no defence has been taken as far as delay is concerned and after considering evidence on record, the trial Court has allowed the injunction application in favour of the plaintiff and the trial Court has passed legal and proper order and hence the same is not required to be interfered with and the appeal deserves to be dismissed. He also submits that till 2007, ex-parte order is granted which is in existence till today and so also this appeal is required to be dismissed by giving necessary direction to the trial Court for expeditious disposal of the suit.
6. From the documents placed on record and facts, it is crystal clear that defendants no.1 to 3 entered into registered sale deed with defendant no.4 in 1995 and subsequently in 1996 defendants no.1 to 3 entered into agreement to sell with the plaintiff and so when registered sale deed took place between defendants no.1 to 3 and defendant no.4 and when possession was handed over by virtue of registered sale deed to defendant no.4, then question does not arise to give possession of the suit property to the plaintiff. It is rather strange that before entering into the agreement to sell which is dated 13.12.1996, the possession was given in June, 1996. So, before the agreement to sell took place, the possession receipt was issued by defendants no.1 to 3 in favour of the plaintiff. There is no force in the arguments of Mr.Pandya who is appearing for the original plaintiff that the point of delay was not raised before the trial Court and so now in appeal, the point of delay cannot be raised. As far as the delay is concerned, it is reflected from the documents and borne out from the facts and the trial Court has not considered the same and thereby committed grave error in allowing the injunction application. On one hand, it is the say of the plaintiff that he was put in possession and the defendants took possession of the land illegally and in spite of that the plaintiff has stated that he was not aware that construction was carried out and as his son was ill, he was busy with his treatment and he could not come to know when defendant no.6 was put in possession and carried out the construction and so contrary version is taken by the plaintiff and so, as, plaintiff did not come before the Court within reasonable time and when there is long lapse of time, the plaintiff is not entitled to get any relief of injunction.
7. It is pertinent to note that the appellant has filed Civil Suit No.422 of 2005 before the Civil Court, Ahmedabad (Rural) against the defendants seeking prayer for restraining the defendants from disturbing and/or preventing the appellant from constructing the flats over the subject project. In the said matter, by way of interim injunction, the defendants therein were restrained from doing so. Thereafter, the entire construction of the flats has got over. The present suit is filed in the year 2007 and it was within the knowledge of the present respondent-plaintiff that in pursuance of the above referred order passed by the Civil Judge in above suit, construction of the flats were carried out. It is also required to be noted that thereupon number of persons were put in possession of the flats. This material fact is not looked into by the trial Court and by that committed error. Taking into consideration the subsequent development which took place and number of persons were put in possession of the flats which were constructed by defendant no.6, if injunction would be granted in favour of the plaintiff, then irreparable loss would be caused to individual persons who are not before the Court and who are in possession of the flats which were allotted to them by defendant no.6 after carrying out the construction. Further, defendants no.1 to 3 have no right to execute agreement to sale in favour of the plaintiff nor any right to hand over the possession to the plaintiff by registered sale deed as defendants no.1 to 3 have already transferred the property by registered sale deed in the name of defendant no.1.
8. So considering the delay as well as facts and circumstances as narrated above, in opinion of this Court, the trial Court has committed an error in granting injunction in favour of the plaintiff. In this view of the matter, this appeal is allowed. The order dated 20.9.2010 passed by the 4th Additional Senior Civil Judge, Ahmedabad (Rural) below Exh.5 in Special Civil Suit No.95 of 2007 is hereby quashed and set aside and the injunction application filed by the original plaintiff-respondent no.1 is hereby rejected.
( M.D.Shah, J ) srilatha Learned advocate for the respondent no.1- plaintiff prayed to stay this order for four weeks. Prayer as prayed for is granted. This order is stayed for a period of four weeks.
( M.D.Shah, J ) srilatha