NANJIBHAI BABUBHAI SANGHANI Vs. BABUBHAI RAMABHAI SANGHANI

JUDGEMENT

(1.) Challenge in this Appeal from Order, under Order 43 Rule 1(r) of the Code of Civil Procedure (hereinafter referred to as 'the CPC' for short), is the order dtd. 9/11/2023 passed below application, Exh.5 by the learned 3rd Additional Senior Civil Judge, Jamnagar in Special Civil Suit No.33/2023 (Old Regular Civil Suit No.38/2023, whereby the injunction application preferred by the appellants has been partly allowed so far as Property No.2 of Scheduled ' A, whereas said application qua Property Nos.1, 3 and 4 has been rejected.

(2.) Heard learned advocate, Mr. Nishit Gandhi for the appellants. Though served, none appears for the respondents.

(3.) Learned advocate submitted that the appellants herein are the original plaintiffs and the respondents herein are the original defendants in the suit filed by the original plaintiffs being Special Civil Suit No.33/2023 (Old Regular Civil Suit No.38/2023). Learned advocate submitted that the aforesaid suit has been filed for the land bearing Survey No.605 (Old Survey No.306/pk.1) admeasuring 2/92/61 Sq.Mtrs., Survey No.646 (Old Survey No.379/pk.2) admeasuring 2/99/47, Survey No.662 (Old Survey No.307/pk.2) admeasuring 0/92/40 and Survey No.663 (Old Survey No.307/pk.1) admeasuring 0/62/22 situated in the sim of Village : Mota Thavariya, Taluka and District : Jamnagar (hereinafter referred to as 'the land in question' for short). Learned advocate submitted that initially the suit was filed by the original plaintiffs inter alia praying for partition, declaration and permanent injunction before the court of the learned Civil Judge, Jamanagar against the original defendant nos.1 and 2, where it has been registered as Regular Civil Suit No.38/2023, however subsequently, it has been renumbered and registered as Special Civil Suit No.33/2023. Learned advocate submitted that after filing of the suit, notice was issued upon the original defendant nos.1 and 2 and in pursuance thereto, they have appeared before the learned civil court through advocate. Learned advocate submitted that however pending suit, sale transaction had taken place between the defendant nos.1 and 2 and one Rambhai Dahyabhai Vesara for the Property Nos.1, 3 and 4 of Scheduled - A, which led to filing of an amendment application, Exh.14 in the plaint for joining him as party defendant no.3, which was eventually granted by the learned trial court by an order dtd. 12/6/2023 and accordingly, amended plaint was placed on record. Learned advocate submitted that in fact, the original plaintiff nos.1 to 4 are the original defendant no.2 are real brother and sisters and are the legal heirs of the original defendant no.1. Learned advocate submitted that land in question is ancestral properties and thus, the original plaintiffs have got equal share in the said ancestral properties but as stated above, an attempt is made to deprive the rights of the original plaintiffs by selling the ancestral property to third party as stated above and to protect their rights, aforesaid suit has been preferred. Learned advocate submitted that along with the suit, an application for injunction has been preferred by the original plaintiffs, however, the said application has not been considered by the learned trial court for all the ancestral properties, therefore, the present Appeal from Order has been preferred. Learned advocate submitted that in fact, the impugned judgment and order passed by the learned trial court is contrary to law and against the evidence on record as the original plaintiffs have successfully proved all basic and necessary ingredients i.e. prima facie case, balance of convenience and irreparable loss and damage going to cause to the original plaintiffs if the injunction is not granted but despite said fact, the learned trial court has partly allowed the injunction application as stated in impugned order. Learned advocate submitted that at the time of deciding the injunction application, the learned Judge has come to a conclusion that there are total four parcels of land (land in question), which have been mentioned in Schedule-A, out of which, only property mentioned at Sr. No.2 prima facie found to be ancestral property, whereas rest of the properties are self-acquired properties of the original defendant no.1. Learned advocate submitted that the original defendant no.1 happens to the father of the original plaintiffs and as per their case, they are permanently residing at Surat and earlier point of time, the original defendant no.1 was residing with them, however, the learned Judge has given specific finding to the effect that the said land is in the name of father and he has purchased the said property from his earning, therefore, the said property can be said to be self-acquired property and, therefore, the original defendant no.1 has got valuable right to sell the said property as per his will and wish. Learned advocate submitted that along with the suit, they have produced certain documents, which clearly goes on to show that the said property is ancestral property. He submitted that total four parcels of land have been mentioned in Schedule-A but the learned Judge has partly considered that the property mentioned at Sr. No.2 in the Schedule-A belongs to ancestral properties, therefore, stay qua the said Property No.2 of Schedule ' A had been granted, whereas the property mentioned at Sr. No.1 of Schedule - A has been transferred in the name of the defendant no.1 through gift deed and entry to that effect came to be mutated in the revenue record, therefore, he had become absolute owner and occupant of the said property on the basis of the gift deed executed by his uncle, whereas the properties mentioned at Sr. Nos.3 and 4 were purchased by him, however, the original plaintiffs have failed to produce any documentary evidence to show that the said properties are the ancestral properties and the name of forefather of the plaintiffs were running in the revenue record since long and in absence of those material, the learned Judge has come to a conclusion that the said properties are self-acquired properties of the defendant no.1, therefore, the original plaintiffs have not got any right upon the said property, therefore, the injunction application qua said properties has not been considered by the learned trial court. Learned advocate submitted that in fact, the revenue record was produced along with the suit, which clearly goes on to show that the property mentioned at Sr. Nos.3 and 4 were transferred in the name of defendant no.1 by executing exchange-deed with the original owner of the said property and there was family settlement between the parties and as a part of the said settlement, the said parcel of land has been transferred in the name of third party by executing exchange-deed and third party has also executed exchange-deed in favour of the defendant no.1 and, therefore on the strength of the exchange-deed executed between the parties, the properties have been exchanged, therefore, the documents pertaining to revenue record produced by the original plaintiffs clearly goes on to show that on the strength of the exchange-deed executed by the parties, the properties are transferred in the name of the defendant no.1, therefore by no stretch of imagination, it can be said that the properties, wherein the name of the defendant no.1 is reflecting as owner and occupier, is self acquired property of the defendant no.1, however on the strength of exchanging the ancestral property, the defendant no.1 had become absolute owner and occupant of the said property and the said fact is clearly fortified from the revenue record. Learned advocate submitted that so far as entry regarding the property pursuant to the entrustment of the property to the defendant no.1 by his uncle by executing gift deed is concerned, the said entry had not been certified as parties have approached the Hon'ble Court and due to which, entry was mutated but subsequently it had become cancelled, therefore, all those properties are ancestral property of the original plaintiffs and, therefore, they have got indefeasible right to seek demand of their share in the said property and without taking them in confidence, the property of their share cannot be sold to third party. Learned advocate submitted that the mode and manner entire transaction took place clearly goes on to show that with sole intent to frustrate the prayer made in the suit in a very hastily manner, the defendant no.1 had executed registered sale deed of those properties in favour of the defendant no.3 and thereby created third party rights, therefore, act, action and mode and manner transaction took place clearly goes not to show that the defendant no.3 is not a bonafide purchaser and at the time of filing of the written statement, he has come with specific case that he is aware about the pending proceedings, despite the said fact, he had entered into an agreement and within a period of seven days, entire transaction took place without obtaining title clearance certificate of the said document. Learned advocate submitted that in fact, as soon as the original plaintiffs have come to know about the said development, immediately they have issued public notice in the newspaper by narrating above facts, despite the said fact, the original defendant no.3 had entered into transaction with sole intent to frustrate the valuable rights of the original plaintiffs. He further submitted that if the interim injunction as prayed for is not been granted, in that event, there are all possible chances that they will create third party rights, which ultimately frustrate the proceedings and it would create multiplicity of proceedings and just to avoid such position, an order of status quo ought to have been granted.