KANAIYALAL HARGOVINDAS PATEL Vs. DHARMESH MANILAL PATEL

JUDGEMENT

(1.) BY way of this appeal from order, the appellants herein ­ original plaintiffs have challenged the order dated 21.07.2011 passed by the learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural) below Exh.5 in Regular Civil Suit No.735 of 2007, by which the learned Judge has rejected the injunction application preferred by the original plaintiffs.

(2.) FACTS : [2.1] The dispute relates to land bearing revenue survey no.282 situated in Ambli village, Taluka ­ Daskroi, District ­ Ahmedabad. On 23.07.1966, said land was transferred in the name of father of appellant no.1 (Hargovindas Patel) in village form no.6 vide entry no.1253. The father of appellant no.1 inherited this property from his father. Upon the death of the father, land was transferred in the name of appellant no.1's mother on 15.03.1973 and it was recorded in village form no.6 vide entry no.1378. On 18.11.1997, mother of appellant no.1 expired without leaving any will. However, on her death, appellant no.1 being son, became owner of the said land. On 04.10.2006, appellant no.1 issued public notice in the newspaper to get title clearance certificate as he was desirous of selling the land. To his shock and surprise, he received written objection from respondent nos.1 to 3 herein conveying that mother of appellant no.1 had sold the land to respondent nos.1 to 3 by registered sale deed dated 01.09.1995 and respondent nos.4 to 5 were confirming parties. Therefore, appellants herein instituted Regular Civil Suit no.735 of 2007 before the learned Principal Senior Civil Judge, Ahmedabad (Rural) seeking cancellation of registered sale deed dated 01.09.1995 executed in favour of respondent nos.1 to 3 herein by mother of appellant no.1. Along with the suit, the appellants also preferred injunction application Exh.5 praying that the respondents herein be restrained from disturbing the possession of the appellants and that the respondents be restrained from transferring the land to third party. It is the case of the appellants herein the suit as well as in the injunction application that respondent nos.1 to 3 herein have forged the signature (thumb impression) of mother of appellant no.1 and have concocted registered sale deed dated 01.09.1995. After hearing both the side, the learned Judge rejected the injunction application Exh.5 preferred by the appellants herein. Hence, this appeal from order.

(3.) APPEAL from order is opposed by Mr.V.M.Pancholi, learned advocate appearing for respondent nos.1 to 3 herein ­ original defendants. It is submitted that order passed by the learned Trial Court is legal and proper. Respondent nos.1 to 3 are bona fide purchasers of the land in dispute from other of the appellant on 01.09.1995. It is further submitted that though sale deed was executed in favour of respondents, as early as in 1995, they have preferred suit on 14.12.2007 i.e. after period of 12 years. During this period, respondent nos.1 to 3 have not disposed of the land in dispute. It is also submitted that from the date of filing the application till the date of deciding the injunction application i.e. during the period of more than four years, respondent nos.1 to 3 have not disposed of the property. It is submitted that land in dispute was new tenure land and on 09.09.1965, entry no.1241 is mutated in the revenue records wherein it is mentioned that name of heirs of Hargovidas Patel is entered into record. It is submitted that on 25.05.1973, another entry being no.1378 was mutated in the record of rights, wherein it is mentioned that Hargovindas Patel has expired on 15.05.1973 and therefore, name of his wife Menaben was entered into the revenue record. It is submitted that so far as revenue proceedings are concerned, restrictions under section 43 of the Tenancy Act was removed and on the basis of order dated 16.03.1995 passed by the Deputy Collector, Entry No.2164 is mutated in the revenue record on 21.03.1995 for the land in dispute. It is submitted that when the restrictions under section 43 of the Tenancy Act are removed, then, mother of the appellant ­ Meenaben was entitled to sell the land in dispute. Name of Menaben was mutated in the revenue record since 25.05.1973 as heir of Hargovindas Patel and it appears that appellant no.1 never objected for the same. It is also submitted that as per sale deed, payment is also made by different cheques. It is further submitted that so far as submission of the appellant that respondents have forged the sale deed is concerned, till date no criminal complaint is filed against respondent nos. 1 to 3 herein. Learned advocate for the respondent nos.1 to 3 has relied on following decisions in support of his submission : 1. Mandali Ranganna v/s. T.Ramachandra and ors. [(2008) 11 SCC 1] 2. State of Orissa and Ors. v/s. Harapriya Bisoi [(2009) 12 SCC 378] 3. North Eastern Railway Administration, Gorakhpur v/s. Bhagwan Das [ (2008) 8 SCC 511 Making above submissions and relying on above decisions, it is requested to dismiss the appeal.