RABARI NAGJIBHAI MANEKLAL Vs NILAMBEN UPENDRABHAI SHAH & ORS.
Bench: Single Bench
Result Published
Acts Referenced
Judgement Snapshot
Case Number
265 of 2016; 7227 of 2016
Hon'ble Bench
S H Vora
Advocates
Shalin Mehta, Jayprakash Umot, Chetan K Pandya, S N Soparkar, Manav A Mehta
Final Decision
Dismissed
Acts Referred
- Code of Civil Procedure, 1908, Order 43Rule 1(r), Order 43 Rule 1(r)
Judgement Text
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1. With the consent of learned Senior Counsel Mr.Shalin Mehta appearing for learned advocate Mr.Jayprakash Umot for the appellant - original defendant No.4 and learned Senior Counsel Mr.S.N. Soparkar appearing for learned advocate Mr.M.A. Mehta for respondent Nos.1 and 2 - original plaintiffs, present Appeal from Order is taken up for final hearing today.
2. Challenge in the present Appeal from Order preferred under Order 43 Rule 1(r) of the Code of Civil Procedure is the order dated 20.07.2016 passed by the learned Principal Senior Civil Judge, Kalol below injunction application Exh.5 in Special Civil Suit No.58 of 2015 whereby, the learned trial Judge directed the appellant - defendant No.4 to handover peaceful and vacant possession of Plot No.11 admeasuring 4757 sq.mtr. bearing Revenue Survey/Block No.487 at Mouje: Rancharda, Kalol, District: Gandhinagar to respondent Nos.1 and 2 - original plaintiffs.
3. Parties to the present appeal would be hereinafter referred to as per their original status in the plaint.
4. Filtering unnecessary details, the dispute pertains to SubPlot No.11 which, according to the plaintiffs, sold by one Akar Co-operative Housing Society Limited (for short, the ''Society'') to Mr.Shorab R. Modi and Ms.Shila S. Modi, who, in turn, by virtue of registered sale deed dated 15.12.2012, sold it to the plaintiffs and put them in possession and since then, the plaintiffs are enjoying possession over the suit land. According to the plaintiffs, they were dispossessed from the suit land by defendant No.4 - appellant herein on 25.09.2015 and, therefore, they have filed suit for declaration to the effect that they are the absolute owners of the suit land by virtue of sale deed dated 15.12.2012 and further relief was sought for by them seeking declaration that defendant No.4 has no right, title or interest in the suit land and prayed to direct defendant No.4 to demolish and remove the wall and gate constructed on the suit land and to handover peaceful and vacant possession of the suit land to the plaintiffs pending hearing and final disposal of the suit. The plaintiffs have also sought for the relief of permanent injunction restraining defendant No.4 from making any temporary or permanent structure or development or to create any third party right in respect of the suit land. Pending hearing of the suit, the plaintiffs have moved an application below Exh.5, inter alia, seeking prayer to grant mandatory injunction to handover peaceful and vacant possession of the suit land against defendant No.4.
5. That, defendant No.4 appeared before the learned trial Court and opposed the suit as well as injunction application on the premise that the plaintiffs were never put into possession by the said Society or its members. That, right from the year 1985, till the date of filing of the suit, neither said Society nor its predecessors-in-title, from whom, said Society purchased the suit land, have ever tried to mutate the name of the society in the revenue records and, therefore, no relief can be granted against defendant No.4, who has been put into possession of the suit land by registered sale deed executed by defendant Nos.1 to 3 on 26.10.1994. According to defendant No.4, the said Society filed one Regular Civil Suit No.123 of 2013 wherein, relief for declaration and perpetual injunction was made with regard to suit land against the present defendants and, in the said suit, the learned trial Judge rejected the injunction application preferred by the said Society.
6. Learned Senior Counsel Mr.Shalin Mehta appearing for learned advocate Mr.Jayprakash Umot for the appellant - original defendant No.4 would contend that the plaintiffs have projected three different versions with regard to their dispossession by defendant No.4 and, therefore, looking to the improvements made by the plaintiffs, no relief of mandatory injunction ought to have been granted by the learned trial Judge in view of conflicting claims of possession by both the sides. For this purpose, learned Senior Counsel Mr.Mehta drawn attention of the Court to the police complaint to demonstrate that it is alleged by the plaintiffs in the said complaint dated 25.09.2015 that one person is trying to take illegal possession of the suit land i.e. Plot No.11 with the help of JCB machine. In an application preferred by the plaintiffs to implead them as party in Special Civil Application No.11805 of 2013, the petitioners have averred that they were in peaceful and continuous possession of the suit land till 25.09.2015 and some miscellaneous work was going on and, therefore, employees of the plaintiffs were frequently visiting the suit land and they did not notice any kind of intrusion, disturbance or interference on or before 25.09.2015. Such application to implead plaintiffs as party in the said Special Civil Application was filed in or around on 29/30.09.2015 whereas, in plaint para 12, the plaintiffs have averred that the defendants have illegally trespassed in the suit property on 25.09.2015. The plaint was presented before the Court on 07.10.2015. Relying upon the assertion/averments made in the police complaint, application for impleadment of plaintiffs as party in the said Special Civil Application as well as averments made in plaint para 12, learned Senior Counsel Mr.Shalin Mehta would contend that no specific date is disclosed by the plaintiffs so as to come to the conclusion the exact date on which, defendant No.4 forcibly dispossessed the plaintiffs from the suit land. In absence of any specific averments and evidence about exact date of dispossession, no relief of mandatory injunction can be granted by the learned trial Judge in view of principles settled by the Hon''ble Apex Court in the case of Kishore Kumar Khaitan and another V/s. Praveen Kumar Singh reported in (2006)3 SCC 312, more particularly, observations made in paras 11, 12 and 14. Learned Senior Counsel Mr.Mehta would contend that the revenue records reflect that defendant No.4 is in possession of the suit land and, therefore, such entry in the revenue record raises presumption with regard to possession of the suit land in favour of defendant No.4. He would contend that before the various revenue authorities, Mutation Entry No.3353, which was posted pursuant to the registered sale deed executed in favour of defendant No.4 on 26.10.1994, remained unaltered and undisturbed. Not only that, defendant No.4 before the said authority, asserted his possession in his pleadings and, therefore, the learned trial Judge has committed an error in discarding the revenue entry in favour of defendant No.4 in light of the decision of the Hon''ble Apex Court rendered in the case of Gurunath Manohar Pavaskar and others V/s. Nagesh Siddappa Navalgund and others reported in (2007)13 SCC 565, more particularly, observations made in paras 11 and 12 thereof. Learned Senior Counsel Mr.Mehta would contend that possession receipt dated 22.08.1994 and share certificate dated 31.03.2002 are made in contravention of the provisions contained under Section 17(aa) read with Section 49 of the Registration Act. In nutshell, learned Senior Counsel Mr.Shalin Mehta projected certain defects in the title of intervening persons i.e. Mr.Shorab Modi and Ms.Shila Modi, from whom, plaintiffs have purchased the suit land by way of registered sale deed dated 15.12.2012 for consideration of Rs.122 lacs. Learned Senior Counsel Mr.Mehta would further contend that defendant No.4 being a bona fide purchaser and holding possession of the suit land since 26.10.1994 on the strength of registered sale deed executed by defendant Nos.1 to 3 and such right in respect of the suit land is mutated in the revenue records raises presumption as to possession of the suit land in favour of defendant No.4 and, therefore, the learned trial Judge ought to have directed both the parties to maintain status-quo position with regard to the suit land in light of conflicting claims based on evidence placed by defendant No.4 before the learned trial Court. At the end, learned Senior Counsel Mr.Mehta would contend that the learned trial Judge has already settled the issues in the suit and, therefore, the matter may be put to an end by issuing suitable direction to the learned trial Judge to decide the suit as early as possible and meanwhile, the impugned order may be kept in abeyance so that, lis involved in the subject matter can be better adjudicated by the learned trial Judge on the basis of the evidence that may be adduced by the parties to the suit.
7. Per contra, learned Senior Counsel Mr.S.N. Soparkar appearing for learned advocate Mr.M.A. Mehta for respondent Nos.1 and 2 - original plaintiffs would contend that there are no inconsistent versions put by the plaintiffs but, at the different period, the plaintiffs have put up their case as to how, defendant No.4 started trespassing in the suit land. As the plaintiffs are not residing in the nearby vicinity of the suit land and also upon the suit land, it cannot be expected from the plaintiffs to specifically state/aver the exect date of dispossession and no such principle is also settled by the Hon''ble Apex Court in the case of Kishore Kumar Khaitan and another (supra) cited at bar by learned Senior Counsel Mr.Shalin Mehta. According to learned Senior Counsel Mr.Soparkar, barring the revenue entry, no any iota of evidence is placed on record to demonstrate before the learned trial Court that defendant No.4 is in actual and physical possession of the suit land and further, predecessors-in-title of defendant No.4, i.e. defendant Nos.1 to 3 were, in fact, in actual and legal possession of the suit land at the time when they executed registered sale deed on 26.10.1994 in favour of defendant No.4. Section 2(g)(v) of the Bombay Stamp Act provides that no registration of share certificate would be required and, therefore, emphasis on the provisions of Section 17(aa) read with Section 49 of the Registration Act is misplaced. Learned Senior Counsel Mr.Soparkar would further contend that the said Society has filed suit against one Mr.Girishbhai C. Patel in the year 1995 being Regular Civil Suit No.22 of 1995 wherein, Court Commissioner appointed by the Court specifically found and observed that said society was in possession of the suit land. Learned Senior Counsel Mr.Soparkar has drawn attention of the Court towards affidavitin-reply filed by defendant No.4 in Special Civil Application No.11805 of 2013 to show that there is no challenge on the part of defendant No.4 with regard to averments made by the said Society as to putting the suit land in possession of said Mr.Shorab Modi and Ms.Shila Modi. Learned Senior Counsel Mr.Soparkar has also drawn attention of this Court towards para 2.9 of the said petition. Such specific averments made with regard to transfer of title and possession of the suit land in favour of said Mr.Shorab Modi and Ms.Shila Modi remained unchallenged and uncontroverted by defendant No.4 by filing affidavit-in-reply in the said Special Civil Application. The said reply is filed before this on 30.09.2015. Learned Senior Counsel Mr.Soparkar would contend that there are other ample evidence by way of electricity bills and maintenance receipts issued by the Society to show that the plaintiffs and their predecessors were in possession of the suit land and, therefore, the learned trial Judge has rightly granted mandatory injunction and, more particularly, defendant No.4 has no title in the suit land on the strength of sale deed executed by defendant Nos.1 to 3 on 26.10.1994 and the view taken by the learned trial Court is a possible view and, therefore, this Court may not interfere with the same in view of the decision of the Hon''ble Apex Court rendered in the case of Mohd. Mehtab Khan and others V/s. Khushnuma Ibrahim Khan and others reported in (2013)9 SCC 221.
8. Having heard submissions made at bar by learned Senior Counsel appearing for the respective parties at length, considering the pleadings of parties to the suit, pleadings of Special Civil Application No.11805 of 2013 and principles settled in the case-laws cited at bar, following aspects emerge. (i) It is an admitted fact that the suit land inherited by one Mr.Gabhalji. Upon his demise in the year 1970, the suit land came to be mutated in the name of Mr.Ranchhodji Gabhalji and Mr.Chanduji Gabhalji. Necessary entries came to be effected in the revenue records in the years 1977 to 1985. On 21.09.1981, said Mr.Ranchhodji Gabhalji and Mr.Chanduji Gabhalji executed registered sale deed No.1004 in favour of one Mr.Varsangji Kanaji Thakor. Though said Mr.Varsangji Kanaji Thakor purchased the suit land from the erstwhile owners, however, one registered partition deed was executed and registered on 22.01.1985 and, on the same date, said Mr.Varsangji Kanaji Thakor executed registered sale deed in favour of the said Society being registered sale deed No.128. (ii) It is a matter of fact that no entry of mutation in favour of the said Society came to be posted but, it is a matter of fact that said Society challenged the Mutation Entry No.3353 before the Prant Officer in the year 1996 and, as the said Society did not succeed before the Prant Officer, it took the matter before the higher authorities by way of revision and appeal under the provisions of the Land Revenue Code. But, ultimately, the revenue authorities confirmed Mutation Entry No.3353 in favour of defendant No.4. The various orders passed by the revenue authorities came to be challenged by the said Society by way of Special Civil Application No.11805 of 2013 and the said petition is still pending as on date. (iii) While issuing notice, the Court has directed the parties to maintain status-quo position in respect of the suit land vide order dated 24.07.2013. It is relevant to note here that said Society, in terms, made averments in the said petition before this Court that the petitioner came into possession in view of the registered sale deed executed by Mr.Varsangji Kanaji Thakor in the year 1985 and since then, the petitioner is in possession of the suit land. The said Society issued share certificate in favour of Mr.Shorab Modi and Ms.Shila Modi on 31.03.2002 and prior to it, they were put into possession on 22.08.1994 through the builders, namely, Arjun Orchards, who was entrusted the work of development on behalf of the members of the society. Such averments made in the petition remained unchallenged and uncontroverted in the affidavit-in-reply filed by the defendant No.4 on 30.09.2015. (iv) It is a matter of fact that said Mr.Chanduji Gabhalji and legal heirs of Mr.Ranchhodji Gabhalji have executed registered sale deed dated 26.10.1994 in favour of defendant No.4 and put him into possession of the suit land as per said sale deed. It is evidently clear that said Mr.Chanduji Gabhalji and Mr.Ranchhodji Gabhalji already sold the suit land on 21.09.1981 to one Mr.Varsangji Kanaji Thakor, who, in turn, sold the same to the said Society on 22.01.1985 by way of registered sale deed No.128. So, prima facie, said Mr.Chanduji Gabhalji and legal heirs of Mr.Ranchhodji Gabhalji had neither any title nor possession over the suit land when they executed registered sale deed in favour of defendant No.4 on 26.10.1994. In fact, the case of defendant No.4 ends here only. (v) As on 26.10.1994, defendant No.4 had no right, title or interest over the suit land by virtue of so called sale deed executed by Mr.Chanduji Gabhalji and heirs of Mr.Ranchhodji Gabhalji. (vi) Reliance on the revenue entry is a rebuttal piece of evidence. Upon scrutiny of the evidence placed on record, it appears that the name of defendant No.4 is not reflecting in the revenue records from 2010-2011 to 2012-2013 and no any revenue record is placed on record after year 2004/2005. Barring a few revenue record showing name of defendant No.4, no revenue record, as on today, has been placed on record to show and prove that defendant No.4 is in lawful possession of the suit land. If, predecessors-in-title of defendant No.4 have no right, title or interest upon the suit land, transfer of right, title or interest or possession of the suit land can never be possible by way of socalled registered sale deed dated 26.10.1994. It is a matter of fact that defendant No.4 has never challenged the title of either Mr.Shorab Modi, Ms.Shila Modi i.e. predecessors-in-title of the plaintiffs nor sale deed executed in favour of the said Society nor of the original owner of the land i.e. Mr.Varsangji Thakor and, therefore, this Court is not inclined to probe into title either of Mr.Shorab Modi, Ms.Shila Modi or the said Society or defect in title of intervening persons on any of the grounds urged before this Court because, it is a matter of fact that predecessors-in-title of defendant No.4 were not holding any right, title or interest or possession over the suit land when they executed sale deed on 26.10.1994 in favour of defendant No.4. (vii) Upon perusal of the registered sale deed executed in favour of defendant No.4, there is no mention of handing over the original title deeds nor there is any evidence on record to show that the predecessors-in-title of defendant No.4 were ever in physical possession of the suit land prior to execution of the registered sale deed.
9. So far as the case-law cited at bar by learned Senior Counsel Mr.Shalin Mehta, more particularly, decision of the Hon''ble Apex Court rendered in the case of Kishore Kumar Khaitan and another (supra) so as to contend before this Court that the plaintiffs have failed to prove that they were forcibly dispossessed on any specific date, more particularly, 25.09.2015. The facts of the case before the Hon''ble Apex Court and facts of the case before this Court are noncomparable. Before the Hon''ble Apex Court, it was the case of the plaintiff there that he was in possession on the date of the suit and on the date of order and has been dispossessed on the next day. The Hon''ble Apex Court, prima facie, in view of the peculiar facts of the case, found that there was no prima facie material to indicate that on 20.06.1998, the plaintiff was, in fact, dispossessed by the defendants. Here, in the present case, the plaintiffs have approached the Court with specific case that on 25.09.2015 and thereafter, defendants, more particularly, defendant No.4 started an act of dispossessing the plaintiffs from the suit land and, therefore, the plaintiffs first filed a complaint and then moved an application to implead them as party in the pending Special Civil Application and lastly, filed a suit on 07.10.2015 seeking relief of possession and perpetual injunction, as aforesaid. Thus, the said case-law is not at all helpful to the defendant No.4 - appellant herein to retain possession over the suit land.
10. There is no disagreement on the principle that the entries made in the revenue records are admissible as a relevant piece of evidence and it raises presumption with regard to possession. But, at the same time, in the case-law cited at bar by learned Senior Counsel Mr.Shalin Mehta in the case of Gurunath Manohar Pavaskar and others (supra), it is also observed that such presumption is rebuttal and further, the revenue record is not a document of title. Since defendant No.4, prima facie, failed to show his lawful, legal and valid title over the suit land on the strength of registered sale deed executed by Mr.Chanduji Gabhalji and legal heirs of Mr.Ranchhodji Gabhalji on 26.10.1994, such scattered revenue entries made in any of the year, more particularly, prior to year 2010, is of no consequence nor have any force in the eye of law to believe or infer that defendant No.4 is in lawful possession of the suit land, as tried to be projected before this Court.
11. Reliance placed by learned Senior Counsel Mr.Shalin Mehta upon the order passed below Exh.5 in Regular Civil Suit No.123 of 2013 filed by the said Society, cannot be considered at all for the simple reason that in the said suit, neither Mr.Shorab Modi nor Ms.Shila Modi nor the plaintiffs were parties and further, the learned trial Court in the said suit, gave much emphasis on the revenue record only and did not consider title over the suit land. Therefore, any findings of fact recorded in the said suit in absence of plaintiffs and their predecessors-in- title cannot be considered and rightly not considered by the learned trial Court while adjudicating injunction application preferred by the present plaintiffs.
12. The combined effect of the above aspects would be sufficient to hold that defendant No.4 has trespassed upon the suit land in or around 25.09.2015 without having any right, title or interest over the suit land. The most damaging aspect of the case against defendant No.4 is such that though he maintained his case before the revenue authorities that he is in possession of the suit land, but, in the petition filed by the said Society being Special Civil Application No.11805 of 2013 before this Court wherein, the society specifically asserted that the possession of the suit land has been transferred to Mr.Shorab Modi and other various sequences as to how possession remained with the society and said Mr.Shorab Modi and Ms.Shila Modi, such factual averments remained unchallenged and uncontroverted by defendant No.4 before this Court in the said proceedings. The voluminous evidence placed on record indicates/proves that the original owner Mr.Varsangji handed over the possession of the suit land to the society, who, in turn, through its builder, transferred the possession of the suit land to Mr.Shorab Modi and Ms.Shila Modi and consequently, said Mr.Shorab Modi and Ms.Shila Modi transferred the possession of the same to the plaintiffs under the registered sale deed leads to believe that defendant No.4 could never be put into possession on the basis of sale deed dated 26.10.1994.
13. Normally, the Court would like to lean in favour of maintaining status-quo position till conflicting claims of possession are settled by the Court. The mandatory injunction is rare. At the same time, it does not mean that the Court does not have power to grant mandatory injunction when the facts of the case so require or warrant. In fact, non- granting mandatory interim relief in rare and suitable case would rise to the tendency of snatching possession illegally and then to control the litigation through the means of Court''s order. It is a case where the plaintiffs approached the learned trial Court with true disclosure of the fact that defendant No.4 trespassed upon the suit land and, therefore, such illegal or unauthorized entry in the suit land cannot be protected in a case when defendant No.4 has miserably failed to establish his title over the suit land. In fact, this is a case where, the Court is required to exercise power of granting mandatory relief, failing which, there would be a gross miscarriage of justice. Defendant No.4, who entered into the suit land forcibly and illegally, cannot be permitted to use Court''s machinery to prevent his eviction for years together. Since the view taken by the learned trial Judge is a possible view, the same is not liable to be interfered with by this Court in view of the decision of the Hon''ble Apex Court rendered in the case of Mohd. Mehtab Khan and others (supra). In fact, the views expressed by the learned trial Judge in the impugned order require no substitution or call for a different conclusion.
14. Lastly, submission made by learned Senior Counsel Mr.Shalin Mehta to the effect that when the issues are already settled by the learned trial Court, let the lis be adjudicated by the learned trial Court after leading evidence and, more particularly, the impugned order may be quashed and set aside so that, both the parties would have an opportunity to establish their possession over the suit land. Though, the argument seems to be attractive one but, the Court is not inclined to permit such wrong doer to take the law in his hand by snatching possession and then to make such submission so as to continue illegal possession over the suit land pending trial and thereafter, in appeal. No relief of any such nature can be extended to such wrong doer and, therefore, the Court is not inclined to consider such request to order to maintain status-quo position over the suit land pending hearing of the suit.
15. In the result, present Appeal from Order fails and the same is hereby dismissed. Consequent to dismissal of the present appeal, connected civil application does not survive and the same also stands disposed of. Rule is discharged.
