Shaileshbhai Naranbhai Patel Vs Nimeshbhai Prahaladbhai Patel (Bhagat)

MR P P MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 MR SP MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 MR DP KINARIWALA with MR JOY MATHEW, ADVOCATE for the Respondent(s) No. 2

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NOTICE SERVED BY DS for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

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C/AO/360/2014 CAV JUDGMENT

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Date : 15/10/2014 CAV COMMON JUDGMENT

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Ld. Advocates for both the parties
jointly requested to take up the matter for final
disposal today. Hence the appeal is admitted and
taken up for final disposal.Ld. Advocate Mr. Joy
Methew waives service of notice of admission for
the respondent no. 2. Though the respondent no. 1
is served, he has selected to remain absent.

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2The appellant is original plaintiff and
the respondents are original defendants. They are
referred to in the same capacity in this
judgment.

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3Heard Ld. Advocate Mr. Majmudar for the
appellant and Ld. Advocate Mr. Kinariwala for Mr.
Joy Methew for the respondent no. 2.

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4The present appeal is preferred against
dismissal of the interim injunction application
exh. 5 vide order dated 12/8/2014 passed in
Special Civil Suit No. 21/2014, whereby the
request of the plaintiff to restrain the
defendants from alienating the suit property is
refused.

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5The plaintiff’s case is to the effect
that though there is agreement to sell in his

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favour executed by the defendant no. 1 on
17/1/2013 against receipt of Rs.5,00,000/-
towards sale consideration for the suit land and
though such agreement to sell has been notarized
on 6/2/2013, the defendant no. 1 has on 8/2/2013
i.e., just within two days of the agreement to
sell in his favour, entered into sale transaction
of the suit property for consideration of
Rs.6,34,000/- by registered sale-deed and
pursuant to such sale transaction, the property
has been mutated in favour of defendant no. 2. At
such stage details of the property is not
material. However, it is properly disclosed in
the pleadings and impugned order. It is also
contended by the plaintiff that pursuant to
agreement to sell in his favour, when defendant
no. 1 has failed to execute the sale-deed,
plaintiff has issued notice dated 23/12/2013
showing his readiness and willingness to make
payment of remaining sale consideration being
Rs.1 lac. However, the defendant no. 1 has failed
to perform his part of the contract and refused
to perform the same by his reply dated
27/12/2013. In addition to notice through
advocate, both the parties have issued public
notice whereby the plaintiff has warned the
public at large from entering into any
transaction so far as suit property is concerned,
contending and disclosing about agreement to

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sell in his favour. Whereas the respondent no. 2
has issued public notice disclosing sale in his
favour and warned public at large from disturbing
his ownership and possession. It is also
contended by the defendant that in fact even
before executing the sale-deed in his favour, the
defendant no. 1 i.e., original land owner has
executed an agreement to sell in his favour on
23/1/2013 wherein it is confirmed that possession
is handed over to the defendant no. 2 and
pursuant to such agreement to sell, sale-deed
was executed on 8/2/2013.

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6It is also evident from the record that
the agreement to sell dated 23/1/2013 and sale-
deed dated 8/2/2013 executed by the defendant no.
1 in favour of defendant no. 2 are registered
documents, whereas agreement to sell dated
17/1/2013 notarized on 6/2/2013 in favour of the
plaintiff and executed by defendant no. 1 is
unregistered document. Therefore, to prove such
unregistered agreement to sell, the plaintiff
has filed affidavit of two witnesses to such
agreement to sell. However, as against that, the
defendant no. 2 has also produced certain
documents which confirm that in fact the
plaintiff was aware about the sale transaction in
favour of the defendant no. 2. One such document
in the form of affidavit dated 22/3/2013 of the

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defendant no. 2 submitted before the revenue
authority to confirm that he is agriculturist.
The glaring fact is to the effect that in such
affidavit sworn by the plaintiff disclosing sale
transaction dated 8/2/2014 in his favour
regarding suit property, the plaintiff has signed
as a witness and identified the defendant no. 2
before the notary. Whereas notice under section
135-D of the Bombay Land Revenue Code dated
8/2/2013 is also on record, wherein the defendant
no. 1 has signed for accepting such notice.
Pursuant to sale and necessary inquiry, revenue
authority has mutated the revenue record by
entering name of defendant no. 2 as owner and
occupant of the suit property.

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7At this stage, when both the sides have
yet to adduce evidence, it would not be

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appropriate to scrutinize entire record minutely
and to decide the rights of any party, so also
the evidentiary value of all such evidence on
record. Therefore, though both the sides are
challenging the validity of particular document,
at this interim stage, prima-facie it becomes
clear that the defendant no. 2 is having
registered document in his favour and the
plaintiff has knowledge of such transaction since
he has signed as a witness in an affidavit dated
22/3/2013 sworn by the defendant no. 2 disclosing

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the suit transaction, there is no prima-facie
case in favour of the plaintiff. However, the
agreement to sell dated 17/1/2013 needs to be
properly scrutinized while adducing evidence by
both the sides and before it is admitted as an
evidence since it does not bear date on page no.
1 and it is unregistered document.

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8Therefore, at such primary stage, when
perusal of the impugned order makes it clear that
the trial Court has taken care of all the factual
details and averments by both the sides as well
as all the citations referred by the plaintiff
for coming to the conclusion that there is no
prima-facie case so also balance of convenience
and thereby irreparable loss in favour of the
plaintiff, there is no reason to interfere with
such a reasoned order.

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9The appellant plaintiff is relying upon
the judgments rendered in the cases of Maharwal
Khewaji Trust v. Baldev Dass reported in AIR 2005
SC 104,which is relied upon and referred in the
judgment rendered in the case of Taraben, D/o.
Nanubhai Kasanbhai Patel v. Shaileshbhai
Rangilbhai Patel in Appeal From Order No. 199 of
2012as well as in Ashokbhai Shankar Chaudhary v.
Jayendra Virendra Sharma rendered in Appeal From
Order No. 196 of 2014 by this High Court. The sum

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and substance of all such citations is to the
effect that unless and until a case of
irreparable loss or damage is made out by the
party to the suit, the Court should not permit
the nature of property to be changed, which also
includes alienation or transfer of property since
it may lead to loss or damage being caused to the
party who may ultimately succeed and may further
lead to multiplicity of proceedings. However,
such decision is because of the factual details
that the litigant has prima-facie case in his
favour and, therefore, only because long time
would be taken in legal proceedings, it cannot be
said that the parties are permitted to change the
nature of the property. There cannot be any
second thought on any decision of the Hon’ble
Supreme Court. However, the fact remains that
factual details in the present case are
altogether different inasmuch as in case on hand,
there is prima-facie evidence in favour of the
defendant no. 2. In view of such prima-facie
evidence in the form of registered documents,
there cannot be interim relief in favour of the
litigant who is claiming his right based upon
some unregistered document, more particularly
considering the fact that even otherwise the
decree for specific performance is discretionary
one which can be substituted by payment of
compensation and damages. In the present case,

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when the defendant no. 1 has executed a
registered sale-deed after registered agreement
to sell in favour of the defendant no. 2 and
thereby when prima-facie case is in favour of the
defendant no. 2, it becomes clear that if at all
the plaintiff is able to prove the agreement to
sell in his favour, then he is entitled to get
back the amount paid by him with interest and
damages as compensation and, therefore, there is
no reason to interfere with any discretionary
order. For the purpose, the defendant no. 2 is
relying upon the decision rendered in the case of
Maya Devi v. Lalta Prasad reported in 2014 AIR

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SCW 1412wherein the Hon’ble Supreme Court has
categorically confirmed that the registered
document has more probative value than
unregistered document. However, if at all the
plaintiff feels that irrespective of contentions
in the pleadings regarding validity and
genuineness of agreement to sell dated 17/1/2013
in his favour, he may apply for refund of amount
paid by him with compensation and damages from
the defendant no. 1, who has remained absent,
both before the trial Court as well as before
this Court, with a prayer to restrain him from
alienating his other properties until such
payment is made or to furnish appropriate
security for such payment. If such application is
filed, the trial Court is at liberty to decide it

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independently and in accordance with law without
being influenced by the impugned order as well as
present judgment.

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10However, as discussed hereinabove, there
is no prima-facie case in favour of the plaintiff
so also the balance of convenience is also not in
favour of the plaintiff. Whereas interim relief
would result into irreparable loss to the
defendant no. 2 and hence when there is no
arbitrariness, perverseness or illegality in the
impugned order, there is no substance in the
present appeal, which deserves to be dismissed.
Hence the appeal is dismissed.

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In view of dismissal of the appeal,

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civil application does not survive and stands
disposed of accordingly. Interim relief granted
earlier is vacated.

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Further Order :

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Ld. advocate for the respondent is

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seeking to stay the operation of the order so as
to enable the respondent to approach appropriate
Court. Considering the facts and circumstances
and the fact that the interim relief was granted
by this Court and it was continued till
pronouncement of the judgment, there is reason to
stay operation of the order. Hence, the operation
of the judgment and order is stayed for four

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