SWAPANALOK OWNERS ASSOCIATION Vs. RAMESH CHANDRA VALLABHRAM MISTRY

JUDGEMENT

(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 society started construction over the said land. He further alleged that thereafter he filed Civil Suit No.3178 of 2005 before the learned City Civil Court, Ahmedabad and the same was withdrawn as the said Court did not have the territorial jurisdiction to try the suit.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.) 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.