Back
Gujarat High Court
Judgename :KUNDAN SINGH
BHAGWANBHAI KARAMANBHAI BHARVAD - Appellant
Versus
AROGYANAGAR CO OPERATIVE HOUSING SOCIETY LIMITED - Respondent
S.C.A. 9291 of 2002
Decided On : 02/21/2003
Constitution of India -Petitions are filed against the judgment and order passed by the Fourth Extra Assistant Judge, in Misc. Civil Appeals No. 95 of 2001. As both these petitions are arising out of the same judgment and order of the trial Court, these petitions are disposed of by common judgment. plaintiff filed Regular Civil Suit No. 513 of 1999 for declaration and permanent injunction along with the application exh. 5 for interim injunction. The defendants also filed an application exh. 51 for vacating ex-parte interim order, wherein both the parties were directed to maintain status-quo vide order by the trial Court. Initially, the ex-parte order was passed by the trial Court but subsequently after hearing both the parties to the aforesaid suit, the final order of status-quo was passed allowing the application exh. 5 and confirmed the ex-parte interim order and rejected the application exh. 51 of the defendants. Against the said common judgment and order passed in the aforesaid civil suit, the plaintiff also filed Civil Misc. Appeal No. 96 of 2001 and the defendant No. 6 filed Civil Misc. Appeal No. 95 of 2001. Civil Misc. Appeal No. 96 of 2001 filed by the plaintiff was allowed and Civil Misc. Apeal No. 95 of 2001 of the deefndant no. 6 was dismissed by the 4th Extra Assistant Judge,(Rural) vide his common judgment and order. As such, the defndants being aggrieved and dissatisfied by the common judgment and order passed Regular Civil Suit No. 513 of 1999, the defendant no. 6 filed Special Civil Application No. 9291 of 2002 and the defendants no. 1 and 3 to 5 and heirs and legal representatives of the original defendant no. 2 filed Special Civil Application No. 10359 of 2002 –Held In the facts and circumstances of this case, I do find that this is not a case sparingly calling for interference by this Court more particularly the findings recorded by the lower appellate court do not appear to be unreasonable or perverse. Therefore, both the petitions are devoid of any merits. Accordingly, both these petitions are dismissed. However, the observations made by lower appellate court in the impugned judgment and observations of this Court in this judgment and order will not prejudice to the rights and contentions of the parties concerned in the proceedings of the suits pending before the trial Court. In both the petitions Rule discharged, with no order as to costs. the last, learned counsel for for the petitioner submitted that learned Assistant Judge (Rural) has granted status-quo and that stutus-quo may be continued for further period of four weeks to enable the petitioner to approach the higher forum. IN the facts and circumstances of this case, I do not find any good reason to accede the request of the learned counsel for the petitioner. Accordingly, the request made by the learned counsel for the petitioner is refused –Petition is Refused.
Key Points: - The writ petitions were filed challenging the interlocutory orders passed by the Fourth Extra Assistant Judge (!) . - The plaintiff filed a suit for declaration and permanent injunction, and the defendants filed an application for vacating ex-parte interim order; the court directed status quo to be maintained (!) (!) . - The sale deeds executed by the land owners in favour of the plaintiff society were held to operate from the date of execution, and the society was in possession (!) (!) . - The court observed that the findings of the lower appellate court regarding prima facie case, balance of convenience and irreparable loss were not unreasonable or perverse (!) (!) . - Both the petitions were dismissed as devoid of any merit, and the rule was discharged without order as to costs (!) (!) .
( 1 ) RULE. Heard the learned counsel for the parties. Both these petitions are filed against the judgment and order dated 30-8-2002 passed by the Fourth Extra Assistant Judge, Ahmedabad (Rural), Navrangpura in Misc. Civil Appeals No. 95 of 2001 and 96 of 2001. As both these petitions are arising out of the same judgment and order of the trial Court, these petitions are disposed of by common judgment.
( 2 ) THE plaintiff filed Regular Civil Suit No. 513 of 1999 for declaration and permanent injunction along with the application exh. 5 for interim injunction. The defendants also filed an application exh. 51 for vacating ex-parte interim order, wherein both the parties were directed to maintain status-quo vide order dated 23-11-2001 by the trial Court. Initially, the ex-parte order was passed by the trial Court but subsequently after hearing both the parties to the aforesaid suit, the final order of status-quo was passed allowing the application exh. 5 and confirmed the ex-parte interim order and rejected the application exh. 51 of the defendants. Against the said common judgment and order dated 23-11-2001 passed in the aforesaid civil suit, the plaintiff also filed Civil Misc. Appeal No. 96 of 2001 and the defendant No. 6 filed Civil Misc. Appeal No. 95 of 2001. Civil Misc. Appeal No. 96 of 2001 filed by the plaintiff was allowed and Civil Misc. Apeal No. 95 of 2001 of the deefndant no. 6 was dismissed by the 4th Extra Assistant Judge, Ahmedabad (Rural) vide his common judgment and order dated 30-8-2002. As such, the defndants being aggrieved and dissatisfied by the common judgment and order dated 30-8-2002 passed Regular Civil Suit No. 513 of 1999, the defendant no. 6 filed Special Civil Application No. 9291 of 2002 and the defendants no. 1 and 3 to 5 and heirs and legal representatives of the original defendant no. 2 filed Special Civil Application No. 10359 of 2002.
( 3 ) THE brief facts of the case are that the defendants no. 1 to 5 were original owners of the land bearing Survey No. 864 admeasuring 19602 sq. mtrs. situated in the sim of village Vejalpur, District, Sub District Ahmedabad and they decided to sell the said land and hence they executed "banakhat" (agreement to sell) in favour of the plaintiff - the Arogyanagar Cooperative Housing Society Ltd. after receiving the entire consideration of Rs. 7,84,080-00 by cheque and in cash on 2-3-1993. On the same day, they executed other document i. e. a notarized supplementary agreement for possession in favour of the plaintiff society. Irrevocable Specific power of attorney was also executed by the defendants no. 1 to 5 in favour of one Jayantibhai C. Patel. They have also executed notarized indemnity bond and notarized "sogadhnama" (affidavit ). On behalf of the defendants no. 1 to 5 the power of attorney holder executed five separate sale deeds on 8-4-1999 in favour of the plaintiff - society. Those separate five sale deeds were produced before the Sub-Registrar, for registration on 17-7-1999. As the plaintiff was not an agriculturist, permission for transfer of an agricultural land to a person not an agriculturist was required. The permission of transfer of the land in question u/s 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 was granted by the Collector concerned on 24-7-1999. Therefore, aforesaid five sale deeds were registered on 3-8-1999 by the Sub-Registrar and thereafter the mutation entries were also effected on 18-12-1999 in the record of rights i. e. village form no. 7-12 and other revenue records, and those entries were certified by Mamlatdar on 1-2-2000. It shows that the defendants no. 1, 3, 4 and 5 have also executed registered sale deeds on 26-12-1997 in favour of the defendants no. 6 as well as notarized power of attorney in favour of Amrutbhai and notarized supplementary agreement for possession was also executed on the same day. The sale deeds were also executed by the defendants no. 1, 3, 4 and 5 in favour of the defendant n
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
