CHANDUBHAI KARSANBHAI BHADUKIA Vs. PREMILABEN GIRIDHARBHAI BHADUKIA

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner praying for quashing and setting aside the order dated 9.11.2012 passed by the learned Additional District Judge, Rajkot, in Civil Misc. Appeal No.46 of 2012 and to restore order dated 1-5-2012 passed by the learned 14 th Civil Judge (SD), Rajkot, below Ex.5 in Regular Civil Suit No.136 of 2010.

(2.) FACTS in short arising from this petition are that the petitioner is the original plaintiff and respondents are original defendants. In the year 2003, the petitioner borrowed a sum of Rs.1.00 lakh from respondent No.3 and as a security, the petitioner executed sale deed pertaining to land bearing Revenue Survey No.270 paiki admeasuring 3 acres and 20 gunthas in favour of respondent No.3 for a consideration of Rs.20,000/- on 2- 6-2003. As petitioner was not in a position to pay back the money when needed by the respondent No.3, it was agreed that respondent No.2 shall repay the amount borrowed by the petitioner from the respondent No.3 and in turn, the respondent No.3 would execute the sale deed of the land in favour of respondent No.1, who is the wife of respondent No.2. The respondent No.2 repaid the amount of respondent No.3 on 16-6-2005 and a sale deed was executed in favour of respondent No.3 for a consideration of Rs.71,100/-. It was also agreed that as and when petitioner returns the amount to respondent No.2 within a period of five years, the respondent Nos.1 and 2 shall execute the sale deed of the land in favour of petitioner. However, after five years, when the petitioner wanted to return the amount to respondent No.2, who is his own brother, the respondent Nos.1 and 2 refused to execute sale deed in favour of petitioner. Hence, the petitioner issued a legal notice to respondent Nos.1 and 2 on 15-3-2010. The respondent Nos.1 and 2 replied to the said notice denying the averments made therein. As the respondent Nos.1 and 2 did not comply with the understanding arrived at in the year 2005, a suit being Regular Civil Suit No.136 of 2010 was filed on 3-5-2010 by the petitioner in the Court of learned Principal Senior Civil Judge, Rajkot, together with an application at Ex.5 for interim injunction. The respondent Nos.1 and 2 as well as respondent No.3 filed their written statements and objections to the application for interim injunction. Affidavits were filed by brother and sister of petitioner as well as respondent No.2 and also by witnesses to the sale deed affirming that transaction between the parties was only that of security only. The petitioner also filed affidavit countering the objections filed by the defendants. Thereafter written arguments and list of documents were filed by both the parties. After hearing the learned advocates appearing for the respective parties, learned 14th Additional Senior Civil Judge, Rajkot allowed the application Ex.5 and rejected the application filed by the defendants for stay of the said order. The respondent Nos.1 and 2 preferred appeal being Civil Misc. Appeal No.46 of 2012 before the learned District Court, Rajkot. Said appeal was allowed by the learned Additional District Judge, Rajkot, vide order dated 9-11- 2012 whereby order dated 1-5-2012 passed by the trial court below application Ex.5 was quashed and set aside. Hence, the present petition has been filed by the petitioner-original plaintiff.

(3.) MR .Mehul Shah for the petitioner submitted that impugned order passed by the learned Appellate Court is contrary to the documentary evidence including the affidavits and oral arguments whereby it was established that sale deeds were executed only as a security for the loan borrowed by the petitioner. He further submitted that the Appellate Court has not considered the principles of Transfer of Property Act and provisions of Evidence Act more particularly Section 92. According to him, it is a system prevalent in the region of Saurashtra that person borrowing money used to execute sale deed of the land held by him only as a security which does not have any effect of transfer of possession and in this case, the property was never transferred. Had the property been intended to be actually sold, real market price ought to have been mentioned in the sale deed, however, in the present case, it is clear that sale deeds were executed at a much lower price than the actual price mentioned in the sale deed. He further submitted that considering these facts, trial court has granted injunction in favour of the petitioner, however, the learned Appellate Court has not considered these aspects. He further submitted that Statement at Mark 58/2 whereby it was stated that petitioner, who was in possession of the disputed property, has been using the said agricultural lands. He further submitted that the lower Appellate Court has failed to consider the affidavits filed by the brother and sister of the petitioner as well as respondent No.3 at Exs.25 and 26, affidavits of Vitthalbhai at Ex.27, Rajeshbhai Chhaganbhai Bhadukia at Ex.28 and Vinodbhai at Ex.61 whereby it would be clear that the sale deeds were executed only as a security for the money transactions and possession of the disputed land was never transferred to anyone. It has also not considered the photographs of the disputed property and the criminal complaint lodged by the present petitioner and the statements of witnesses of sale deed. He further submitted that when the petitioner was in actual and physical possession of the suit land, the Appellate Court ought not to have interfered with the injunction granted by the trial court. He therefore prayed that the impugned order passed by the lower Appellate Court requires to be quashed and set aside by allowing this petition. In this connection, he relied on the following reported decisions: