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IN THE HIGH COURT OF GUJARAT
C.L. SONI, J.
Velbai W/o Naran Narsani and D/o Natha Harji Halai - Appellant
Versus
Natha Harji Halai - Respondent
Appeal From Order No. 8 of 2012; Civil Application No. 1 of 2018, 2, 3 of 2015, 2, 3 of 2016
Decided On : 13-12-2018
Civil Procedure Code, 1908 – Order XLIII – Order XLIII – seeking to restrain defendants from selling, transferring, alienating or creating charge on suit lands –Conversion of suit lands to nonagricultural use – Challenging Learned Judge order – Held, No dispute with regard to fact that an undivided share of co-sharer may be a subject-matter of sale, but possession cannot be handed over to vendee unless property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of Court –Learned Judge has on prima facie assessment of material on record found that suit lands do not prima facie appear to be ancestral and undivided joint Hindu family Properties and also on conduct of plaintiff found that plaintiff is not entitled to grant of equitable relief –Court in impugned order in exercise of powers under Order XLIII of CPC – Appeal dismissed. [Para 19, 21 and 23]
Facts of the Case:
Appellant seeking to restrain defendants from selling, transferring, alienating or creating charge on suit lands –Conversion of suit lands to nonagricultural use – Challenging Learned Judge order
Findings of the case:
No dispute with regard to fact that an undivided share of co-sharer may be a subject-matter of sale, but possession cannot be handed over to vendee unless property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of Court –Learned Judge has on prima facie assessment of material on record found that suit lands do not prima facie appear to be ancestral and undivided joint Hindu family Properties and also on conduct of plaintiff found that plaintiff is not entitled to grant of equitable relief –Court in impugned order in exercise of powers under Order XLIII of CPC.
Result: Appeal dismissed.
C L SONI, J.
1. The appeal is filed under Order XLIII of the Civil Procedure Code, 1908 ("the CPC") against the order dated 04.11.2011 passed by learned 4th Additional Senior Civil Judge, Bhuj (Kutch) below application Exh.5 in Special Civil Suit No.111 of 2011.
2. The appellant is the original plaintiff and the respondents are the original defendants in above suit. They shall be referred as per their original status in the suit. The plaintiff is the daughter of defendant No.1 and the sister of defendant No.2 to 4. The defendants No. 5 to 9 are the first purchasers of the suit lands and the defendant No.10 to 12 are the second purchasers of the suit lands.
3. In the above suit, the plaintiff has prayed to declare that the sale deed dated 17.04.2010 executed by the defendant no.1 in favour of defendant no.5 to 9 is invalid, as it is false and bogus and the defendant no.1 has no right or authority to sell the suit lands belonging to joint Hindu family; to declare that the sale deed dated 12.01.2011 executed by the defendant no. 5 to 9 in favour of defendant no.10 to 12 is invalid, as it is also false; to grant permanent injunction restraining the defendant Nos.10 to 12 from selling, transferring, alienating or creating any charge on the suit lands and restraining the defendant No.10 to 14 from taking any proceedings for conversion of the suit lands to non-agriculture use.
4. The case of the plaintiff in her suit is that lands bearing Survey Nos.36/2 ad-measuring 0-79-00 Hectare-Are-Sq.mt, Survey No.37 ad-measuring 1-04-00 Hectare-Are-Sq.mts, survey No.40 admeasuring 3-49-00 Hectare-Are-Sq.mts, Survey No.42 ad-measuring 3-27-00 Hectare-Are-Sq.mts and Survey No.870/55 ad-measuring 0- 02-00 Hectare-Are-Sq.mts (total ad-measuring 8-68-00 Hectare-AreSq.mts, referred as 'the suit lands') are ancestral and undivided properties of joint Hindu Family since the time of her grandfather and not of independent ownership of her father defendant No.1; that no partition or relinquishment from the suit lands has ever taken place, but the defendant No.1 got the sale deeds executed for the suit lands in his favour from Bhimji Parbat and Lalji Parbat who had no right or authority to sell the suit lands to the defendant No.1; that the defendant No.1 illegally acquired rights in the suit lands and in illegal manner he executed sale deed dated 17.04.2010 in favour of the defendant Nos.5 to 9 for consideration of Rs.38 lac and, thereafter, the defendant Nos.5 to 9 sold the suit lands to defendant Nos.10 to 12 by registered sale deed dated 12.01.2011 for consideration of Rs.85,90,000/- and thus, the suit lands have been in possession of the defendant Nos.10 to 12, which is not legal possession and that the defendant no.10 to 12 are not the bona fide purchasers of the suit lands. It is further case of the plaintiff that though Suit No.544 of 2008 for partition of suit lands is pending between the parties, still the above two sale deeds were executed for the suit lands causing prejudice to the rights of the plaintiff. It is stated that if the defendant Nos.10 to 12 get the suit lands converted to non-agricultural use, the plaintiff will be put to great hardship in getting her share from the suit lands.
5. In the above suit, the plaintiff filed application Exh.5 seeking to restrain the defendants No.10 to 12 from selling, transferring, alienating or in any manner creating charge on the suit lands and also from taking any proceedings to convert the suit lands to nonagricultural use and also restraining the defendant Nos.13 and 14 (the state authorities) from taking any proceedings for conversion of the suit lands to non-agricultural use. Learned Judge has rejected such application Exh.5 by impugned order.
6. Learned advocate Mr.Mehta for the plaintiff submitted that the suit lands are the ancestral properties held by her grandfather and his brothers and neither any partition of the suit lands had ever taken place nor the plaintiff has relinquished her r
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