NAVED S KADRI Vs. MUSTAK MOHAMAD MANSURI

JUDGEMENT

(1.) By way of filing this appeal from order under Order 43 Rule 1 of the Civil Procedure Code the appellant ? original defendant No.2 of Special Civil Suit No.241 of 2003 has challenged the judgment and order passed by the learned City Civil Court, Ahmedabad below interim injunction application by which the learned Judge has partly allowed the interim injunction application submitted by respondent No.1 who is the original plaintiff of that suit and the original defendants Nos.1, 2 and 3 are directed to maintain the status quo regarding title as well as possession of the suit property. Respondent no.1 herein instituted the aforesaid suit which is a suit for declaration and injunction. The case of the plaintiff in the said suit is that there is a cooperative society in the city of Ahmedabad, namely, Saffrony Cooperative Housing Society and that one of the flats on the third floor which was constructed by the said Society is allotted to the plaintiff by the said Society. The description of the same is given in paragraph 1 of the plaintiff. It is the case of the plaintiff that defendant No.2 of the suit (i.e. the present appellant) has tried to obtain certain documents in collusion with defendant No.1 and that the said fact came to his knowledge on making enquiry from the society. It is the case of the plaintiff that he is in physical possession of the flat in question and that the construction, which was carried out by defendant No.1 is illegal and even Ahmedabad Municipal Corporation is joined as defendant No.4. It is averred in the plaint that the construction carried out by defendant No.1 is contrary to the building rules and regulations, though no specific prayer is made against the Corporation in the prayer clause of the plaint. It is the case of the plaintiff that by obtaining the loan he has purchased the suit property and that he has made full payment to defendant No.1 and he has been handed over the documents of possession, etc. which have been deposited by him with Housing Finance company from which he has taken loan and he was granted loan of Rs.5 lakhs. It is the case of the plaintiff that even though he was allotted the flat but the possession has not been handed over on the ground that some minor works are pending. It is the say of the plaintiff that defendant No.1 who had undertaken the task of constructing the flats on behalf of the Society and who has been given the development agreement by the Society has illegally transacted with defendants Nos.2 and 3 and that on enquiry the plaintiff found that in the record of the Society the name of defendant No.2 is entered as owner and occupier but actual and physical possession of the same is with defendant No.3. It is also the say of the plaintiff that the transactions, if any, entered into by defendant No.1 with defendant No.2 are illegal and they maybe declared as null and void. In paragraph 12 of the plaint it is averred that defendant No.3 is residing with family members in the flat in question. It is alleged that defendant No.1 is a fraudulent person. It is clearly averred in the plaint as well as in injunction application that the defendant No.3 is occupying possession of the flat in question and that he is residing in the flat since many years with his family members. The suit is accordingly filed for a declaration as well as for permanent injunction against the defendants of the said suit. As per the cause of action mentioned in the plaint for filing of the suit, the same arose at the time when the plaintiff entered into agreement with defendant No.2 for allotment of the flat in question as well as by entering into agreement for possession as well as at the time when the loan was taken by the plaintiff from some financial institutions. In the aforesaid suit injunction application was pressed into service to the effect that defendants may be restrained from entering into any transaction in connection with the suit flats and for restraining them from transferring the suit property to any one during the pendency of the suit.

(2.) The aforesaid suit was resisted by the defendants on various grounds. So far as the appellant is concerned, as pointed out earlier, he is original defendant No.2 in the suit. According to defendant No.2 , the said flat in question is allotted to him by giving the share certificate by cooperative society, namely, Saffrony Cooperative Housing Society Limited. It is the say of the present appellant ? original defendant No.2 in the said that he is the owner of the suit property and he has legal title over the suit property. It is also his say that the suit is filed by the plaintiff in collusion with defendant No.3. It is also the say of the defendant No.2 that he has paid full consideration and consequently the so called documents and share certificates are already handed over to him and even possession letter is handed over to him and money receipt is given to him by the Society. He therefore submitted that the injunction application deserves to be rejected. The original defendant No.1 has not filed any written statement before the trial Court. So far as original defendant No.3 is concerned, he has filed his written statement at Exhibit 24 wherein he has taken the stand that he has paid the full consideration and he is the real allottee of the flat and he is in physical possession of the flat in question. It is the say of defendant No.3 that he is in actual possession of the suit property. In his written statement he has also pointed out that some proceedings are pending before the Board of Nominees Court under Section 96 of the Gujarat Cooperative Societies Act, 1961. It is his case that the Board of Nominee has rejected the application for injunction in his absence and that Board of Nominees has rejected his prayer for injunction in his absence by dismissing the same for default against which the appeal is pending before the Cooperative Tribunal. In short, the say of defendant No.3 is that he is in physical possession of the flat in question and, therefore, no injunction can be granted against him.

(3.) The learned trial Judge after hearing the concerned parties and after considering the prima facie evidence on record partly allowed the said application for injunction by which the plaintiff as well as defendant No.3 are directed to maintain status quo for title as well as possession of the suit property. For passing the said order the Court has taken into consideration the Court Commissioner's report. Being aggrieved by the aforesaid order of the learned trial Judge below Notice of Motition application Exhibit 7 in the aforesaid Civil Suit No.241 of 2003, the appellant ? original defendant No.2 has preferred this appeal from order under Order 43 Rule 1 of the Civil Procedure Code.