RAJIV KANCHANLAL SHETH Vs. JADAVBEN LALLUBHAI HIRABHAI PATEL

JUDGEMENT

(1.) APPEAL From Order No.377 of 2010 has been filed by the appellants original defendant Nos.2 to 9 while Appeal From Order No.378 of 2010 has been filed by the appellant original defendant No.1 under Order XLIII Rule 1 of Code of Civil Procedure being aggrieved and dissatisfied by the judgment and order dated 18 11 2010 passed below Ex.5 by the learned 8th Additional Senior Civil Judge, Vadodara, in Special Civil Suit No.685 of 2009 whereby injunction application Ex.5 filed by the present respondent Nos.1 and 2 original plaintiffs (hereinafter referred to as 'plaintiffs' for short) was granted.

(2.) CASE in short as appearing from Appeal From Order No.377 of 2010 is that father of defendant No.1 had partitioned the hereditary properties between himself and his two sons vide partition deed dated 21 3 1970. Out of the properties of said partition deed, plaintiff No.2 was also entitled to certain properties while the present suit property had come to the share of defendant No.1. Case of the plaintiffs in the said civil suit was that after partition deed dated 21 3 1970, late father of defendant No.1 and plaintiff No.2 sold off their share of property to ensure smooth functioning of joint family. The plaintiff No.2's share of property was acquired by Gujarat Housing Board while that of defendant No.1 remained untouched. Further case was that as late father of defendant No.1 and plaintiff No.2 were having no property, the suit property which came to the share of defendant No.1 was partitioned into three parcels vide family deed dated 2 3 1972 in which each of the defendant No.1, plaintiff No.2 as well as late father of defendant No.1 was entitled to 1/3 rd portion. Upon the death of late father of defendant No.1, his one third share went to mother of defendant No.1 and plaintiff No.2 i.e. plaintiff No.1 herein. According to the defendant Nos.2 to 9, said alleged family deed dated 2 3 1972 was not entered into revenue record while original partition deed dated 21 3 1970 was mutated in the revenue record and it remained till 1986. Defendant Nos.2 to 9 further state that in 1987, they preferred Regular Civil Suit No.794 of 1987 against the present defendant No.1 contending inter alia that plaintiffs therein were entitled to one third share each in the suit property and the defendant No.1 herein was trying to sell off the entire property and, therefore, it was prayed to grant a declaration that plaintiffs therein were entitled to one third share each. According to defendant Nos.2 to 9, said suit had been allowed ex parte and decree was drawn on 31 11 1988 which was mutated in the revenue record on 5 5 1989. Thereafter, present defendant No.1 preferred Misc. Civil Appln.No.160 of 2000 on 20 7 2000 for recalling of said ex parte decree and to decide it biparte. Ex parte decree was recalled vide order dated 29 7 2000 and ultimately, parties entered into a "Karardad" dated 1 8 2000 based upon which, the learned trial court passed order on 11 8 2000 in which, both the deeds dated 21 3 1970 and 2 3 1972 were referred. Said order dated 11 8 2000 was entered in the revenue record. According to defendant Nos.2 to 9, in the decree dated 11 8 2000, the trial court passed final order whereby rights of the parties were directed to be governed by deed dated 21 3 1970 and earlier permanent injunction granted at Ex.1 was directed to be quashed and set aside. Defendant Nos.2 to 9 submit that on satisfying the title of the defendant No.1, they entered into a registered sale deed dated 1 10 2009 on payment of sale consideration of Rs.3,74,00,000/ . Therefore, a suit being Special Civil Suit No.685 of 2009 was filed by the present respondent Nos.1 to 2 original plaintiffs contending inter alia that land bearing Revenue Survey No.255 of Mouje Gorva, District Vadodara, in the joint ownership of plaintiffs and defendant Nos.1 was sold by the defendant No.1 to the defendant Nos.2 to 9 although he held only one third portion of the said property and the balance two third portion being of the plaintiffs. Therefore, by the present suit, the plaintiffs sought partition of the suit property by metes and bounds and to hand them over two third portion of the suit property. They also prayed to quash and set aside the registered sale deed dated 1 10 2009 and sought a declaration that the said sale deed executed by defendant No.1 in favour of defendant Nos.2 to 9 qua 2/3rd portion is not binding on them. The plaintiffs also preferred an application for temporary injunction at Ex.5 seeking to restrain the defendant Nos.2 to 9 from transferring, assigning, selling, mortgaging, gifting, leasing or rending out the said property to any other person and from creating any further right. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned 8 th Additional Senior Civil Judge, Vadodara, vide order dated 18 11 2010 granted interim injunction. Hence, the present Appeal From Orders.

(3.) THE aforesaid order was challenged before the Hon'ble Apex Court by way of Special Leave to Appeal (Civil) No.9849 of 2011 wherein following order has been passed by the Hon'ble Apex Court on 23 9 2011: