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2003 Supreme(Guj) 195
Gujarat High Court
Judgename :P.B.MAJMUDAR
SHREERANG DEVELOPERS - Appellant
Versus
HIMMATLAL JAMNADAS MANIAR - Respondent
APPEAL FROM ORDER 112 of 2002
Decided On : 04/10/2003
Headnote:
Properties Act –Civil Law -Since common points are involved in all these Appeals, with the consent of parties, all these Appeals are taken up for hearing together. So far as A. O. Nos. 190, 191, 282, 283 and 365 of 2002 are concerned, they are at the admisison stage and it is agreed that the said Appeals are also to be heard finally, along with the other Appeals, which are already admitted by this Court. Accordingly, the said Appeals are also ordered to be admitted and heard finally with the rest of the appeals. Thereis a property, bearing Ward No. 2, Nondh No. 3,. was a big parcel of land, which originally belonged to one and his four sons. There were many hutment dwellers occupying portion of the said property. The said hutment dwellers were the tenants of the original owner. said original owner by various sale deeds, sold away the said property, viz. , 43 plots, to 22 persons, including the present plaintiffs. The said property was sold to the plaintiffs and other purchasers in by way of registered sale deed and accordingly, the plaintiffs became owners of the respective areas of the land in question. It is not in dispute that the said property was sold with the existing huts and 108 hutment dwellers were residing at the relevant time in the said land. Out of the said total 22 purchasers, who have purchased 43 plots, in all, in between them, 8 persons instituted Civil Suits before the Civil Judge (Senior Division), for a declaration and injunction and submitted applications Exhibit 5 for interim injunction. So far as Regular Civil Suit No. 703 of 1997 is concerned, the same was filed and its new number is Special Civil Suit No. 456 of 2001. The said suit is filed by one Parekh as Power-of-attorney holder. The case of the plaintiff in the said suit is that the plaintiff is the owner of the suit property, being the property admeasuring 127. 10 sq. metres, situated at : City Survey No. 2, bearing Ward No. 2, Nondh No. 3/11, situated, that she purchased the said property from its original owner - IT is further clarified that this Court has not decided whether the defendants have purchased the property in breach of the injunction. It is for the trial court to take this point into consideration and decide the same whether the injunction order of the Court is breached by any one of the defendants. Question about genuineness of the documents or otherwise is also required to be decided after full-fledged evidence is adduced by the parties in the pending suits. Therefore, all these points are required to be kept open as such points are required to be decided after the parties adduce evidence. Even otherwise, when the purchasers have purchased the property during the pendency of the suits, naturally, they have taken the property with full knowledge and risk that a litigation is pending in respect of the said property. IN view of what is stated above, the Appeals are accordingly partly allowed, by continuing the interim order passed by the learned single Judge during the pendency of the aforesaid civil suits, with a direction that if the defendants want to sell or transfer any portion of the suit property, the names of such purchasers should be disclosed to the trial court and the plaintiffs will be at liberty to join them in the suits so that, ultimately, such purchasers will be bound by the decree to be passed by the trial court –Appeal is Allowed.
( 1 ) ). SINCE common points are involved in all these Appeals, with the consent of parties, all these Appeals are taken up for hearing together. So far as A. O. Nos. 190, 191, 282, 283 and 365 of 2002 are concerned, they are at the admisison stage and it is agreed that the said Appeals are also to be heard finally, along with the other Appeals, which are already admitted by this Court. Accordingly, the said Appeals are also ordered to be admitted and heard finally with the rest of the appeals.
( 2 ) THERE is a property, bearing Ward No. 2, Nondh No. 3, situated at Ring Road, Rustampura, Surat City. There was a big parcel of land, which originally belonged to one Sarguru Niyazali Shah and his four sons. There were many hutment dwellers occupying portion of the said property. The said hutment dwellers were the tenants of the original owner, Sarguru Niyazali Shah. The said original owner, Sarguru Niyazali Shah, by various sale deeds, sold away the said property, viz. , 43 plots, to 22 persons, including the present plaintiffs. The said property was sold to the plaintiffs and other purchasers in October, 1983 by way of registered sale deed and accordingly, the plaintiffs became owners of the respective areas of the land in question. It is not in dispute that the said property was sold with the existing huts and 108 hutment dwellers were residing at the relevant time in the said land. Out of the said total 22 purchasers, who have purchased 43 plots, in all, in between them, 8 persons instituted Civil Suits before the Civil Judge (Senior Division), Surat, for a declaration and injunction and submitted applications Exhibit 5 for interim injunction. So far as Regular Civil Suit No. 703 of 1997 is concerned, the same was filed on 27. 11. 1997 and its new number is Special Civil Suit No. 456 of 2001. The said suit is filed by one Haribhai Balubhai Parekh as Power-of-attorney holder of Kantaben Ramchandra Parte. The case of the plaintiff in the said suit is that the plaintiff is the owner of the suit property, being the property admeasuring 127. 10 sq. metres, situated at : City Survey No. 2, bearing Ward No. 2, Nondh No. 3/11, situated at Ring Road, Rustampura, Surat City, that she purchased the said property from its original owner, Sarguru Niyazali Shah and his four sons, that she has become owner by virtue of the sale deed executed by the said original owners in her favour on 24. 10. 1983, that the plaintiff wanted to sell the said property and the intending purchaser, therefore, gave public notice through his Advocate Mr. Pravin P. Devmurari. The said notice was given on 22. 10. 1997, inviting objections. In response to the said notice, reply was given by the defendants in the newspaper on 30. 10. 1997 and, according to the plaintiff, on the basis of the said reply to the public notice, the plaintiff enquired from the office of the Sub Registrar, and on enquiry, it came to the notice of the plaintiff that a document of sale is executed by one Maneklal Bhagwandas Reshamwala as power-of-attorney holder of the plaintiff Kantaben Ramchandra Parte in favour of one Himmatlal Jamnadas Maniar and the sale consideration is mentioned as Rs. 49,000. 00 in the said document. The case of the plaintiff is that the plaintiff had never given any such power-of-attorney to Maneklal Bhagwandas Reshamwala and the plaintiff had never signed any such power-of-attorney in favour of the said person. The case of the plaintiff, therefore, is that the said Maneklal Bhagwandas Reshamwala, in collusion with defendant Nos. 1 to 3, has prepared false documents and that, by virtue of the said document, the said Himmatlal Jamnadas Maniar cannot be said to have been the owner.
( 3 ) DURING the pendency of the suit, the plaintiff submitted an application for interim injunction at Exhibit 5. The plaintiff also submitted another application at Exhibit 51, as, during the pendency of the said suit, a caveat was submitted by one Shrirang Developers, a p
