BIPINBHAI GOPALBHAI GADHAVI Vs. MADINABIBI NAZAR ALI

JUDGEMENT

(1.) The appellant herein is the original plaintiff of Special Civil Suit No. 29 of 2004 which is filed before learned Civil Judge, Senior Division, Ahmedabad Rural. The said suit is filed for getting decree for specific performance of suit agreement. The case of the plaintiff is that there is a property situated at village Geratpur, Taluka Daskroi, Dist. Ahmedabad. The property in question is described in paragraph 1 of the plaint. It is the case of the plaintiff that on 22.10.86 an agreement to sale was executed by Kadar Ali Nazar Ali Saiyed and his wife Lalbibi The said agreement was executed in favour of Pramodrai Ambalal Raval and Nirupamaben. Thereafter on 30th August 1986, an irrevocable Power of Attorney was executed and therefore the original owners have no right, title or interest in the property. It is the case of the plaintiff that the said Pramod and Nirupama have transferred their rights by way of a Banakhat by taking full consideration on 06.01.96 and accordingly, the property is also transferred by them in favour of the plaintiff. According to the plaintiff, he is a bonafide purchaser. It is the case of the plaintiff that according to the banakhat, the price of 66 Vighas of land in connection with block No. 61 and 66 was fixed at Rs.20,000/- per vigha and the land was agreed to be sold to the plaintiff at Rs.13,20,000/- and the said amount has been paid in installments. It is the case of the plaintiff that accordingly, the plaintiff has agreed to purchases the aforesaid land for a total amount of Rs.13,20,000/-. It is the case of the plaintiff that thereafter, the defendants have not executed any documents of sale. There is a reference of executing another banakhat on 08.11.99 re-affirming the agreement to sale dated 15.10.94, which, according to the plaintiff, is executed by the said Kadar Ali Nazar Ali Saiyed. It is the case of the plaintiff that the respondents are trying to sell away the property in question. There is also reference to a suit field by deceased Kadar Ali Nazar Ali Saiyed which is in connection with cancellation of power of Attorney given to the plaintiff, which, according to the plaintiff was settled subsequently. The case of the plaintiff is that now since the price of the property has increased, the defendants are not ready to execute the sale deed. It is also the case of the plaintiff that he has also filed Regular Civil Suit No. 681 of 2001 for permanent injunction. In that suit an interim injunction application was pressed into service which was rejected, against which the plaintiff has also filed an appeal before the District Court and the same is pending. On this and other grounds, the plaintiff has filed this suit, being S.C.S. No. 29 of 2004, praying for a decree for specific performance. In the said suit, the plaintiff submitted an application for injunction at Exh.5 with a prayer that the defendants may be restrained from transferring or alienating or dealing with the suit property, i.e. block No. 61 and 66 situated in village Geratpur, Taluka Daskroi, Dist. Ahmedabad. The learned trial Judge initially granted ad-interim relief, but ultimately after hearing the parties, vacated the injunction by judgment and order dated 19.01.06 against which the original plaintiff has filed the present Appeal from Order.

(2.) Learned advocate Mr. Patel has submitted that the trial Court has committed an error by holding that if any banakhat has taken place on 08.11.99 such banakhat is a nullity as permission of the Collector is not taken and that the plaintiff cannot get legal possession on the basis of such agreement to sale. The trial Court also found that before filing the present suit, the plaintiff had also instituted another suit being Regular Civil Suit No. 681 of 2001 in which injunction application was rejected by the trial Court. Mr. Patel further submitted that the trial Court has committed an error in coming to the conclusion that the prayer of the appellant plaintiff is barred by res-judicata. Mr. Patel further submitted that that the trial Court has not considered the merits of the case and has rejected the application on the ground of res judicata, as well as on the ground that the suit is not maintainable in law.

(3.) Mr. Jani, learned advocate for the respondent, on the other hand, submitted that when in the earlier suit, the application for injunction was rejected, even though the bar of res judicata may not apply, yet on the basis of judicial parity and comity, in a subsequent suit, Court cannot grant injunction when such prayer is rejected by the Court in the previously instituted suit, and simply because some additional prayers are made in the present suit, and even if specific performance is asked for, so far as interim injunction is concerned, identical injunction is prayed for in this suit. It is submitted that on the basis of judicial parity and comity, injunction could not have been granted by the learned Judge and therefore, it is rightly not granted.