HARSHADKUMAR KANTILAL BHALODWALA Vs. ISHWARBHAI CHANDUBHAI PATEL

JUDGEMENT

(1.) Present Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure has been preferred by the appellants-original defendants No. 3 and 4 challenging the impugned order dated 27.1.2009 passed by the learned 8th Additional Senior Civil Judge, Bharuch passed below Exh. 5 in Civil Suit No. 95 of 2007, by which the learned trial Court has allowed the application for interim injunction partly restraining the defendants No. 3 and 4 from transferring/alienating the suit land in question to any third party during the pendency and final disposal of the suit.

(2.) That the respondent No. 1 herein - original plaintiff has instituted Special Civil Suit No. 95 of 2007 in the Court of learned Principal Senior Civil Judge. Bharuch for cancellation of registered sale deed dated 15.5.2007 executed by the original defendant Nos. 1 and 2 (original land owners) in favour of the appellants herein-original defendants No. 3 & 4 as well as for specific performance of the agreement to sell dated 16.1.2006 (20.1.2006) alleged to have been executed by the original defendants No. 1 and 2 (original land owners). In the alternative, the original plaintiff has prayed for a decree directing the original defendants No. 1 and 2 to pay Rs. 4,50,000/- with 24% interest p. a. from the date of execution of the agreement to sell dated 16.1.2006. The original plaintiff has also prayed for a decree for possession as well as decree of permanent injunction restraining the defendants from transferring/alienating the suit property in question and restraining the defendants from putting up any construction on the land in question. It is the case of the original plaintiff that original defendants No. 1 and 2 (original land owners) have entered into one agreement to sell dated 16.1.2006 (20.1.2006) by which the original defendants No. 1 and 2 have agreed to sell the disputed suit land in question to the plaintiff for a sale consideration of Rs. 20 lacs out of which sum of Rs. 4,50,000/- was paid to the original land owners towards the part sale consideration (Bana amount). That instead of execution of sale deed in favour of the plaintiff, the original land owners i. e. original defendants No. 1 and 2 sold the land in question to the appellants -original defendants No. 3 and 4 by registered sale deed dated 15.5.2007 for a sale consideration of Rs. 15 lacs. Hence, the plaintiff instituted aforesaid suit for the aforesaid relief. That in the said suit, the original plaintiff submitted the application for interim injunction below Exh. 5 restraining the defendants from transferring alienating the suit land in question till the final disposal of the suit. Application for interim injunction was resisted by the defendants. Original defendants No. 1 and 2 - original land owners disputed the execution of agreement to sell in favour of the plaintiff. The original land owners also disputed the receipt of Rs. 4.50,000/- towards part sale consideration as alleged. It was submitted that as such the public notice was given inviting the objections, if any, with respect to the sale of the land in question and when no objections were received, the defendants No. 1 and 2-original land owners executed the sale deed in favour of the defendants No. 3 and 4. It was further submitted that after getting the land in question converted in the non agricultural use, possession of the land in question has been handed over to the defendants No. 3 and 4. It was submitted on behalf of the defendants No. 3 and 4 that they are bona fide purchasers of the land in question after full payment of sale consideration and execution of the registered sale deed in their favour and after given public notice inviting the objections, if any, with respect to the sale of the land in question and as no objections were received, defendants No. 3 and 4 have purchased the disputed land in question. Therefore, it was submitted that there is no prima facie case in favour of the plaintiff; that the balance of convenience is also in favour of the defendants No. 3 and 4 as they are the bona fide purchaser of the land in question for value without notice. Therefore, it was requested to dismiss the said application for interim injunction. That the learned trial Court by the impugned order allowed application Exh. 5 in part restraining the defendants No. 3 and 4 from further transferring and/or alienating the suit land in question till the final disposal of the suit. Hence, the original defendants No. 3 and 4 the purchaser of the land question have preferred the present Appeal from Order.

(3.) Shri Munshi, learned Advocate appearing on behalf of the appellants- original defendants No. 3 and 4 has vehemently submitted that the learned trial Court has materially erred in granting the injunction in favour of the original plaintiff and against the defendants No. 3 and 4 restraining the defendants No. 3 and 4 from transferring / alienating the disputed land in question till the final disposal of the suit. It is submitted that the learned trial Court has not properly appreciated the prima facie case and balance of convenience while granting the injunction in favour of the plaintiff. It is submitted that the learned trial Court ought to have appreciated that as the defendants No. 3 and 4 have purchased the disputed land in question by the registered sale deed on payment of full sale consideration and as they are the bona fide purchasers of the land in question for the value without notice, balance of convenience is in favour of the appellants-original defendants No. 3 and 4. It is also further submitted by Shri Munshi, learned Advocate for the appellants that as such a public notice was given before the execution of the sale deed in favour of the defendants No. 3 and