BHAVINBHAI BHAILALBHAI PATEL Vs. ASHOKBHAI KANTILAL KAPADIYAQ

JUDGEMENT

(1.) Present petitioners have invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for seeking following reliefs:-

(2.) The background of facts stated by the petitioners is that the petitioners have filed Regular Civil Suit No.219 of 2014 for seeking partition of co-parcenery property, being land bearing Revenue Survey/ Block No.70 lying and situated at village Vaddalana, Taluka Bharuch, District Bharuch and land bearing Survey / Block No.226 situated in the same village and the respondent Nos.1 to 4 have allegedly purchased one of the suit properties, being Revenue Survey No.226, whereas the respondent Nos.5 to 8 are co-parceners of the suit properties. While seeking partition by way of the present suit, the petitioners have also filed an injunction application under Order 39 Rule 1 and 2 of the Code of Civil Procedure inter alia praying to restrain the respondents from further transferring or alienating the suit property during pendency of the suit and the said application Exh.5 came to be rejected by learned Judge vide order dated 8.10.2015. Being aggrieved by and dissatisfied with the said order, the petitioners have preferred further appeal before the District Court, being Misc. Civil Appeal No.45 of 2015. But, according to the petitioners, the same is also rejected vide order dated 10.8.2018 and by raising multiple contentions, the petitioners have invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for assailing both the concurrent orders passed by the Courts below.

(3.) Learned advocate Mr. Kunal Naik appearing with Mr. Utsav Parikh has vehemently contended that learned Trial Court as well as the Appellate Court have not considered in true sense that the property in question is undisputed a co-parcenery property. The Courts below have also misread the pleadings as well as the material led before the Court. On the contrary, it is undisputedly clear from the revenue record entries that the grandfather's name is very much reflected. It is only when the income tax notice came to be received, it was found by the petitioners that the transaction has taken place with the respondents in collusion with the other co- parceners. It has further been submitted that even if the respondent purchasers were not aware about the fact of the property being co- parcenery, the principle of 'Buyer Beware' will apply and they cannot claim to be a bonafide purchasers. It has further been contended that on the contrary, the respondents, being co- parceners, at the best have share in the property and cannot alienate the property in its entirety and this fraud being practiced upon the petitioners, further alienation should not take place, which may turn out to be in multiple litigations amongst the parties and as such, by relying upon the decision delivered by the Apex Court, in the case of Shyam Narayan Prasad Vs. Krishna Prasad and others reported in (2018)7 SCC 646, a request is made not to allow the impugned orders to sustain in the eye of law. Mr. Naik has further submitted that the Trial Court has completely overlooked the revenue entries which are having a fiscal value as well. The name of the grandfather Ranchhodbhai, since reflecting, could not have been overlooked by the Courts below. Resultantly, the findings arrived at by the Courts below are perverse, which call for interference of this Court. It has further been contended that the reasons which are assigned while passing the orders are not sufficient enough to sustain or support the conclusion and the right of a co-parcener is not properly construed by the Courts below. Resultantly, till final disposal of the suit proceedings, the relief prayed for deserves to be granted. Learned advocate has then requested to expedite the suit and till then, at least, direct the parties to maintain the status-quo in the alternative form. No other submissions have been made.