Dismissed

Thakor Bhikhiben Daughter and Legal Heirs of Late Gandaji Juhaji Thakor v. Thakor Maheshji Javanji

Gujarat HC9 May 2019AO/137/2019

Case brief

AI extract

What is this about?

Appeal from an order rejecting an application for permanent injunction. The High Court upheld the trial judge's decision, finding the appellant failed to establish prima facie title or irreparable injury, noting the respondent held title via a registered sale deed.

What did the court decide?

Order dated 28.12.2018 of the trial Court rejecting the injunction application is confirmed and the Appeal is dismissed.

Thakor Bhikhiben Daughter and Legal Heirs of Late Gandaji… — Property and Title | Gujarat HC (2019)

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C/AO/137/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/APPEAL FROM ORDER NO. 137 of 2019

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With

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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019

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In R/APPEAL FROM ORDER NO. 137 of 2019

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=============================================== THAKOR BHIKHIBEN DAUGHTER AND LEGAL HEIRS OF LATE GANDAJI JUHAJI

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THAKOR

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Versus

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THAKOR MAHESHJI JAVANJI

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=============================================== Appearance :

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MS ROMA I FIDELIS(3529) for the Appellant(s) No. 1 for the Respondent(s) No. 1,2,3

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===============================================

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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

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Date : 09/05/2019

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ORAL ORDER

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[1] The present Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure is filed for the purpose of challenging the legality and validity of an order dated 28.12.2018 passed by the learned 2^nd Additional Senior Civil Judge, Mehsana below Exh.5 in Special Civil Suit No.18 of 2018 whereby learned Judge has rejected an application for seeking injunction.

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[2] The brief facts leading to the rise of present Appeal from Order are that original plaintiff i.e. appellant has filed a Special Civil Suit No.18 of 2018 for the purpose of seeking declaration and permanent injunction and also for quashing and setting aside the sale documents with

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C/AO/137/2019 ORDER

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respect to the suit land which are described as land bearing Account No.636, Revenue Survey No. / Block No.234, Account No.637, Revenue Survey No. / Block No.233 and Account No.638, Revenue Survey No. / Block No.235, which were agriculture land bearing promulgation entry No.2606. This disputed portion of lands was held by father of the plaintiff Thakor Gandaji Juhaji as an ancestral property and father of the plaintiff died on 04.02.1963. It is the case of the appellant that after death of father in 1963, the plaintiff became entitled by inheritance this portion of land as described above. But according to appellant - plaintiff, with a view to defeat the right of the plaintiff by showing incorrect pedigree in the revenue record, entry was got mutated and certified the same vide entry bearing No.597 dated 15.05.1970. Additionally, even after death of Javanji Gandaji Thakor who died on 21.02.2007 in the similar way the entries were got mutated on 22.11.2010 bearing entry No.2052 with respect to which a grievance is pending. It is further assertion of the appellant-plaintiff that though land was belonging to father of the plaintiff and was coming in joint name, still, the defendants No. 1 and 2 by defrauding the right of appellant - plaintiff sold the land for a sum of Rs.80,00,000/- by registered sale deed on 31.08.2017 bearing registered document No.8154 of 2017 and though there was a specific grievance even that transaction has also been mutated in revenue record, but without hearing the plaintiff even the revenue authorities have also not

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C/AO/137/2019 ORDER

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entertained RTS proceedings bearing Case No.59 of 2017. Though this portion of land, mentioned above, is in the hands of plaintiff in which his right by inheritance is very much reflecting, keeping aside the plaintiff, the suit land had been sold in the year 2017 which has constrained the plaintiff - appellant to bring the suit for seeking declaration, permanent injunction and for setting aside the registered sale deed which suit was registered as Special Civil Suit No.18 of 2018.

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[2.1] The appellant - plaintiff alongwith this suit has also filed injunction application below Exh.5 to which defendants have submitted their respective replies opposing the grant of application. Defendant Nos.1 and 3 have submitted common reply at Exh.19 whereas defendant No.2 has submitted the reply at Exh.21 and after considering pleadings and material it was found by the learned Judge that no case is made out and the said Exh.5 application, by reasoned order, came to be rejected on 28.12.2018, which is made the subject matter of the present Appeal from Order.

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[3] Learned advocate Ms.Roma I. Fidelis representing the appellant - plaintiff has vehemently submitted that there is a serious mischief committed by the defendants to defraud the rights of the daughter, and undisputedly, the land in question, according to the plaintiff, was belonging to the father who died in the year

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C/AO/137/2019 ORDER

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1963, but then by keeping aside the interest of present plaintiff – appellant, the land has been sold away for a sizable amount. Even the revenue authorities have also not looked into minutely and though pointed out, the learned trial Judge has not considered the case of the appellant and rejected the request. This exercise, as such, according to the learned advocate, reflects non application of mind. It has further been contended that reasons which are assigned by the learned trial Judge are not sufficient enough to sustain conclusion which has been arrived at, and therefore, this error which has been committed in exercising jurisdiction deserves to be corrected.

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[3.1] Learned advocate Ms. Fidelis further contended that three important ingredients governing the grant of interim relief are in favour of the present plaintiff, but the same have not been properly appreciated hence, the conclusion arrived at cannot be said to be just and proper. This material error in exercising jurisdiction deserves to be corrected in the interest of justice. According to the learned advocate for the appellant, the judgments which have been relied upon are not possible to be applied and rather ratio laid down in the said judgment has not been properly observed and as such, the very exercise of passing an order suffers from the vice of material, irregularity.

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C/AO/137/2019 ORDER

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[3.2] Learned advocate Ms. Fidelis has further submitted that on two occasions the mischief is committed against the plaintiff by the original defendants, but by misleading the revenue authorities by not disclosing correct pedigree, the rights which are by now crystalized in favour of daughter by Hindu Succession Act are sought to be taken away. The revenue authorities have also not cogently examined the issue which has ultimately led the learned trial Judge also to commit an error. This being a situation, with a view to avoid multiplicity of proceedings, the suit lands are to be protected from being further passed on which may create an irreversible situation. According to the learned advocate, the very exercise of jurisdiction is contrary to the documentary material which is attached to the proceedings, hence the Appeal from Order may be allowed by setting aside the impugned order. It has further been contended that a systematic fraud is committed against the plaintiff and the right of the daughter and her interest in the property to which she is legitimately entitled to is tried to be taken away. Hence, from that angle also, when the fraud is practiced upon the appellant, the subject matter of the property deserves to be protected. No other submissions have been made.

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[4] Having heard learned advocate appearing for the appellant and having gone through the material on record, ex facie it appears that learned trial Judge has

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C/AO/137/2019 ORDER

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taken pains to examine the material which has been brought before him. It has further been analyzed by the trial Court that death of the father took place on 04.02.1963 and twice revenue entries have been effected by inheritance. The plaintiff all along this period has kept silence and for that also there is absolutely no explanation coming out about her due diligence. At a first point of time, immediately after the death of the father, when the inheritance entry came to be mutated on 15.05.1970 during that period and after that period there is no grievance was raised by the plaintiff even after the death of Javanji Gandaji Thakor on 21.02.2007. Further revenue entry took place, but at that time also, no grievance is raised in the year 2010 and it is only when the sale instance has taken place by registration for the first time after so many years, it appears that a speculative litigation is generated by the appellant - plaintiff, and therefore, upon analyzing this situation, it appears to this Court that there is no error committed by the learned trial Judge in any form.

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[5] Apart from that, even RTS proceedings have also not been disposed of in favour of the plaintiff which is also an additional factor which would go against the plaintiff. Further, the learned Judge has also considered that transaction in question which took place in favour of the defendant No.3 was a bona fide transaction in which after completing necessary formalities, the registered sale

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C/AO/137/2019 ORDER

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transaction has taken place and public notice was issued, title clearance certificate was issued and after examining the revenue entries defendant Nos. 1 and 2 have sold the land in favour of defendant No.3 and that registered transaction is found to be not irregular in any form. At this stage of the proceedings and as such, when such fact is minutely examined by the Court below and it has been found that plaintiff has remained silent throughout the period from 4.2.1963 to 2018 till filing of the suit, the Court is justified in rejecting the request of interim relief.

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[6] Further, it appears that while arriving at a conclusion, the learned trial Judge has completely considered the law on the subject governing grant or refusal of injunction. The Court after relying upon the decisions delivered by the Hon'ble Supreme Court has come to the conclusion that all factors governing the grant of interim relief are not in favour of the plaintiff and injunction came to be refused by a reasoned order and as such, this exercise of jurisdiction is not possible to be construed as perverse in any form, nor suffers from the vice of any material irregularity. Hence, when the learned Judge has applied his mind at a length, considered the documentary evidence before him at this stage of the proceedings on analysis, the same being in consonance with the proposition of law such detailed reasoned order is not possible to be substituted by this Court in exercise of appellate jurisdiction in the absence of any distinguishable material or in the absence of any perversity or material

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C/AO/137/2019 ORDER

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irregularity. In view of this, no case is made out by the appellant in considered opinion of this Court.

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[7] Additionally, the Court is also of the opinion that prima facie case and prima facie title is not to be confused and here is the case in which undisputedly prima facie title by virtue of registered sale deed is in favour of defendant and as such, such prma facie title cannot be questioned at this stage of the proceedings when interim relief is to be considered and it is settled position of law that normally the injunction against registered owner cannot be granted particularly when the reliefs can be compensatory in terms of money. Hence, here is the case in which in this peculiar set of circumstances, the Court is of the opinion that no case for injunction is made out by the appellant.

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[8] The Court has an advantage of one of the proposition of law laid down by the Apex Court in the decision in the case of Dalpat Kumar and another versus Prahlad Singh and others reported in AIR 1993 SC 276 and the observations contained in paragraph Nos.5 and 6 are sufficient enough to take in aid while disposing of present Appeal from Order. The relevant observations contained in paragraph Nos. 5 and 6 since considered by this Court are reproduced hereinafter:

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“5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs

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C/AO/137/2019 ORDER

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adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.

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C/AO/137/2019 ORDER

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6. Undoubtedly, in a suit seeking to set aside the decree, the subject-matter in the earlier suit, though became final, the Court would in an appropriate case grant ad interim injunction when the party seeks to set aside the decree on the ground of fraud pleaded in the suit or for want of jurisdiction in the Court which passed the decree. But the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injuries to either party and whether the plaintiff could be adequately compensated if injunction is refused. This case demonstrates (we are not expressing any opinion on the plea of fraud or their relative merits in the case or the validity of the decree impugned), suffice to state that the conduct of the respondent militates against the bona fides. At present there is a sale deed executed by the Court in favour of the first appellant. If ultimately the respondent succeeds at the trial. They can be adequately compensated by awarding damages for use and occupation from the date of dispossession till date of restitution. Repeatedly the Civil Court and the High Court refused injunction pending proceedings. For any acts of damage, if attempted to make, to the property, or done, appropriate direction could be taken in the suit. If any alienation is made it would be subject to doctrine of lis pendence under Section 52 of the Transfer of Property Act. The High Court without adverting to any of these material circumstances held that balance of convenience lies in favour of granting injunction with the following observations, "keeping in mind the history, various facts which have been brought to my notice, and looking to the balance of convenience and irreparable loss, I think it will be in the interest of

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C/AO/137/2019 ORDER

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justice to allow these appeals and grant temporary injunction that the appellants may not be dispossessed from the suit property". The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success.”

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[9] In view of aforesaid circumstances and in view of background of this case, the Court is of the clear opinion that no case is made out by the appellant to interfere with exercise of discretion by the trial Court. Hence, order dated 28.12.2018 passed by the learned 2^nd Additional Senior Civil Judge, Mehsana below Exh.5 in Special Civil Suit No.18 of 2018 is hereby confirmed. Accordingly, the present Appeal from Order stands dismissed.

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[10] In view of the order passed in Appeal from Order, Civil Application does not survive and stands dismissed accordingly.

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(A.J. SHASTRI, J)

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DHARMENDRA KUMAR

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Thakor Bhikhiben Daughter and Legal Heirs of Late Gandaji Juhaji Thakor v. Thakor Maheshji Javanji

Case brief

What is this about?

What did the court decide?

Thakor Bhikhiben Daughter and Legal Heirs of Late Gandaji Juhaji Thakor v. Thakor Maheshji Javanji

Case brief

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What did the court decide?

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