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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
S.M. Modak, J.
M/s Sharma Construction Company – Appellant
Versus
Ramdas Govinda Wagde (Dead) – Respondent
Appeal Against Order No. 4 of 2019
Decided On : 22-10-2019
SPECIAL CIVIL SUIT - SALE DEED - INJUNCTION - TRANSFER OF PROPERTY ACT, 1882 - SPECIFIC RELIEF ACT, 1963 - CIVIL PROCEDURE CODE, 1908 - The appellants filed a suit for declaration of ownership and declaration about the nature of decree obtained by the respondents on the basis of collusion and fraud. The appellants claimed that they had entered into an oral agreement to purchase the suit land and had made part payment, while the family members of the vendors had pleaded two written agreements to sell. The appellants had obtained two registered sale deeds of the suit land, while the respondents had obtained a favourable decree in a specific performance suit against the family members of the vendors. The appellants sought injunctions to restrain the respondents from interfering with their possession of the suit land and to restrain the family members of the vendors from creating third party interest in a certain land. The trial court rejected the appellants' application for injunction, which was upheld by the High Court. The appellants appealed to the Supreme Court.
Fact of the Case:
The appellants, who claimed to have purchased the suit land from the family members of the vendors, filed a suit for declaration of ownership and declaration about the nature of decree obtained by the respondents on the basis of collusion and fraud. The appellants had obtained two registered sale deeds of the suit land, while the respondents had obtained a favourable decree in a specific performance suit against the family members of the vendors. The appellants sought injunctions to restrain the respondents from interfering with their possession of the suit land and to restrain the family members of the vendors from creating third party interest in a certain land. The trial court rejected the appellants' application for injunction, which was upheld by the High Court.
Finding of the Court:
The Supreme Court held that the appellants were not entitled to an injunction to restrain the respondents from executing the decree obtained in the specific performance suit, as the decree was obtained by a court of superior jurisdiction and the appellants had not made out a prima facie case of collusion or fraud. However, the Supreme Court granted an injunction to restrain the family members of the vendors from creating third party interest in a certain land, on the condition that the appellants furnished a bank guarantee of Rs. 1 crore within two months.
Issues: Whether the appellants were entitled to an injunction to restrain the respondents from executing the decree obtained in the specific performance suit.
Ratio Decidendi: The Supreme Court held that the appellants were not entitled to an injunction to restrain the respondents from executing the decree obtained in the specific performance suit, as the decree was obtained by a court of superior jurisdiction and the appellants had not made out a prima facie case of collusion or fraud. However, the Supreme Court granted an injunction to restrain the family members of the vendors from creating third party interest in a certain land, on the condition that the appellants furnished a bank guarantee of Rs. 1 crore within two months.
Final Decision: The Supreme Court allowed the appeal in part and granted an injunction to restrain the family members of the vendors from creating third party interest in a certain land, on the condition that the appellants furnished a bank guarantee of Rs. 1 crore within two months.
JUDGMENT :
S.M. Modak, J.
The members of the family of Ramdas Wagde and Eknath Wagde owns a land bearing Khasara No.40, PH No. 73, mouza Zari, District Nagpur. It admeasures about 2.43 H of land. Two sets of parties claim that on different occasions they have agreed to purchase/purchased some portion or entire portion of the said land from those family members. One set of such parties/purchasers are plaintiff nos. 1 to 6 of Special Civil Suit No.874/2017, (hereinafter referred to as 'subsequently instituted suit i.e. second suit'). Whereas, present respondent nos. 7 and 8 are another set of purchasers from the family members of Wagde.
2. There are two versions about purchase/sale transaction with the plaintiffs of the second suit. According to the plaintiffs, there was a oral agreement to purchase the land and payment was made on 30-12-2004 whereas, the family members of Wagde family i.e. defendant nos. 1 to 6 of the second suit have pleaded two written agreements to sell. One is dated 30-12-2004 and another is undated but having stamp papers dated 28-12-2005. Whereas, present respondent nos. 7 and 8 pleaded about two written agreements to sell dated 16-10-1998.
3. The present plaintiffs were successful in getting executed two registered Sale Deeds of the suit land dated 02-01-2006 and 22-10-2007. Whereas, present respondent nos. 7 and 8 could not get executed Sale Deeds from the family members of Wagde family (on the basis of 1998 agreements). They were compelled to file Special Civil Suit No.185/2005 for specific performance (hereinafter referred to as 'prior suit'). It was against the family members of Wagde family. They were successful in getting a favourable decision from the trial Court. They were also successful in getting confirmation of the said decision from the First Appellate Court and even from the Second Appellate Court.
4. On one hand, the present appellants have got registered Sale Deeds and possession with them over the suit land whereas on the other hand, respondent nos. 7 and 8 are fighting legal battles. When the decree was confirmed in Second Appeal, they have filed execution proceedings. The present plaintiffs suo motu appeared in it and applied for intervention. The Executing Court has not favoured them as per order dated 26-07-2018. They were also not successful before the Writ Court and the decision was confirmed on 10-04-2019. Even they failed before the Hon'ble Supreme Court.
5. By quoting the cause of action dated 06-08-2017, the present plaintiffs have chosen to file a Special Civil Suit No.184/2017 (second suit). On that date the certain persons came on the suit land and their acts were found detrimental to their interest. By not disclosing about 1998 agreement by the family members of Wagde family, they have played fraud on them. It was at the time of entering oral agreement and while accepting part consideration. During enquiry, they revealed about filing of 2005 suit and decree. They have labelled the earlier suit and decree obtained therein is the outcome of a collusion in between the parties thereto i.e. defendant nos. 7 and 8 (as plaintiffs of that suit) and defendant nos. 1 to 6 (as defendants therein). Hence, the relief of declaration as to ownership and declaration about the nature of decree is being sought. During pendency of the suit, they have sought for two kinds of injunction in respect of a suit land i.e Schedule 'A' land and one kind of injunction in respect of Schedule 'B' land.
6. The plaintiffs were not successful in getting temporary injunction in their favour i.e. how they are before this Court by way of an appeal.
7. I had the occasion to hear learned Advocates Shri Bhutada and Shri Maheshwari for the appellants and learned Advocate Shri Dharkar for respondent nos. 2 to 6 and learned Advocate Shri Mohta for respondent nos. 7 and 8. On one hand, learned Advocate Shri Maheshwari co
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