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2022 Supreme(Guj) 346
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Harish Veljibhai Joshi Through Poa Darshan Harishbhai Joshi – Appellant
Versus
Jitendra Veljibhai Joshi – Respondent
R/Appeal From Order No.138, 140 of 2021, Civil Application (For Stay) No. 1 of 2021
Decided on : 01-04-2022
Advocate Appeared:
MR SP MAJMUDAR, MS NIYATI B KATIRA, SHASHVATA U SHUKLA
The main legal point established in the judgment is the rights of a bonafide purchaser and the compensation of a co-owner in terms of money under the Transfer of Property Act and Hindu Succession Act.
Headnote:
Property Dispute - Special Civil Suit - [PROPERTY DISPUTE] - [Transfer of Property Act, Hindu Succession Act, Code of Civil Procedure] - The court discussed the plaintiff's claim as an heir to the property and the defendant's status as a bonafide purchaser. The court referred to various legal provisions including the Transfer of Property Act, Hindu Succession Act, and Code of Civil Procedure to determine the rights of the parties. The court held that the defendant, as a bonafide purchaser, had the right to use the property and that the plaintiff could be compensated in terms of money for his share. The court allowed the appeal from the defendant and dismissed the appeal from the plaintiff, directing the defendant to mention the pendency of the suit in any future transactions and expedite the hearing of the civil suit.
Fact of the Case:
The plaintiff filed a Special Civil Suit claiming his right as an heir in a property and seeking injunction against the defendant from making further construction or transferring the property. The defendant, a bonafide purchaser, contended that the plaintiff's claim could be compensated in terms of money and sought dismissal of the suit and the interim injunction.
Finding of the Court:
The court found that the defendant, as a bonafide purchaser, had the right to use the property and that the plaintiff could be compensated in terms of money for his share. The court allowed the appeal from the defendant and dismissed the appeal from the plaintiff, directing the defendant to mention the pendency of the suit in any future transactions and expedite the hearing of the civil suit.
Issues: The main issue was the determination of the plaintiff's right as an heir in the property and the defendant's status as a bonafide purchaser, leading to the grant of interim injunction and subsequent appeals from both parties.
Ratio Decidendi: The court's decision was based on the interpretation of legal provisions including the Transfer of Property Act, Hindu Succession Act, and Code of Civil Procedure, which determined the rights of the parties. The court held that the defendant, as a bonafide purchaser, had the right to use the property and that the plaintiff could be compensated in terms of money for his share.
Final Decision: The court allowed the appeal from the defendant and dismissed the appeal from the plaintiff, directing the defendant to mention the pendency of the suit in any future transactions and expedite the hearing of the civil suit.
JUDGMENT :
1. Both these Appeals from Order are filed against impugned order below Exh-5 passed in Special Civil Suit No. 155/2021 by the Civil Judge (S.D.) at Vadodara dated 20.10.2021. Hence, both the matters were heard together.
2. The Appeal from Order No. 138 of 2021 is filed by the original defendant No.10 whereas Appeal from Order No. 140 of 2021 is filed by the original plaintiff.
3. The brief facts as emerged from the Appeal are as under:
3.1 The plaintiff has filed the aforesaid Special Civil Suit against the defendant No.10 and other family members of the plaintiff himself for a declaration and injunction stating that his right as an heir in the property bearing Plot No. 08 of Shri Harinagar Co-op. Housing Society and other consequential relief. Along with the Plaint, he has also filed Application below Exh-5 for injunction Application with a prayer that defendant No.10 may not make further construction over the plot in question and he may be restrained from creating any third party interest in any manner whatsoever. According to the plaintiff, he is one of the legal heirs of Veljibhai Lakhamshibhai Joshi along with other defendants and has stated that Veljibhai Lakhamshibhai Joshi has died on 14.4.1982 and the Plaintiff’s mother Pushpaben Joshi also died. That the property bearing Plot No. 8, of Shri Harinagar Co-operative Housing Society Ltd. situated at F.P. No. 270, T.P. Scheme No.2, consisting of Survey Nos. 184, 185 paiki, City Survey No.4 was belonging to deceased Veljibhai Lakhamshibhai Joshi and Jitendrabhai Veljibhai Joshi in the Society on and from 12.2.1976. It is a case of the plaintiff that his father as well as defendant No.2 Jitendrabhai Veljibhai Joshi being one of the heirs had suppressed the names of other heirs firstly in the year 1976 and secondly on 14.4.1982 when his father died. According to the plaintiff, Pedigree was made on 11.12.2014 in which there was no other name except two when the said transfer in the name of two persons were made in City Survey Record on 26.4.2014. According to the plaintiff, by suppressing name of other heirs, the defendant Nos. 1 to 9 have got entered their names as heirs in the revenue record and have sold the property to defendant No.10 Tatashtu Reality. According to the plaintiff, he has legal right as a heir in the suit property. According to the plaintiff, the defendant Nos. 1 to 8 have sold the property to defendant No.10 by registered saledeed, which is not binding to him as it is against his right over the property as a legal heir. On all these grounds, he has filed the suit for declaration that he has undivided share in the suit property as a legal heirs and the sale-deed executed in favour of defendant No.10 is not binding to him and null and void ab-initio and the declaration that the defendant No.10 has no legal title over the property or over possession of the property as well as for removal of any of the construction if any and restraining the defendant No.10 from creating any right or transferring the property to any third party.
3.2 The suit has been resisted by defendant No.10 filed with requisite written statement and reply to the Exh-5 application. After hearing both the sides, learned Civil Judge passed the order in favour of the plaintiff restraining the defendant No.10 from making any further construction over the plot in question and / or making any change in the existing situation till 20.4.2022 and that the defendant No.10 shall not hand over any part from the plot in question to any third party in any manner whatsoever till 20.4.2022. It is further ordered by the learned Civil Judge that the said ordered shall remain in force till 20.4.2022 and will automatically come to an end thereafter.
4. According to defendant No.10 - appellant, he is the bonafide purchaser and he has paid huge amount. It is also contended that after getting title clearance certificate and after proper inquiry, it has purchased the land in question from defendant Nos. 1 to
