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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Devan M. Desai, J.
Sakilahmad Mumtazali Kadri – Petitioner
Versus
Shafikahmed Mumtazali Kadri – Respondent
R/Special Civil Application No. 20856 of 2023
Decided On : 12-01-2024
Injunction - Property Dispute - Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991, Transfer of Property Act, 1882, Prohibition of Benami Property Transactions Act, 1988 - The court considered the provisions of the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991, Transfer of Property Act, 1882, and Prohibition of Benami Property Transactions Act, 1988 in a property dispute case. The court found that the defendant was restrained from selling, alienating, or creating any charge over the suit properties until the final disposal of the case.
Fact of the Case:
The petitioner filed a civil suit for declaration and permanent injunction against the respondent, who is the petitioner's brother, regarding properties purchased jointly. The respondent filed a suit for partition and share in the income of the properties. The trial court partly allowed the petitioner's injunction application, which was challenged and set aside by the district court. The petitioner sought relief from the high court to restrain the respondent from alienating the properties during the pendency of the suit.
Finding of the Court:
The court found that the defendant was restrained from selling, alienating, or creating any charge over the suit properties until the final disposal of the case. The court allowed the petition and quashed the decision of the district court, dismissing the appeal. The court also stayed the order for three weeks.
Issues: The issues involved the restraint on alienation of properties during the pendency of a civil suit, the rights of co-owners to alienate undivided portions of properties, and the application of relevant property laws in the dispute.
Ratio Decidendi: The court considered the principles of prima facie case, balance of convenience, and irreparable injury in granting or rejecting an equitable relief. It found that the defendant's conduct could lead to further complication and multiplicity of proceedings if not restrained from alienating the properties.
Final Decision: The petition was allowed, the decision of the district court was quashed, and the appeal was dismissed. The court restrained the defendant from selling, alienating, or creating any charge over the suit properties until the final disposal of the case. The order was also stayed for three weeks.
ORDER :
1. With the joint request of learned senior advocates for the respective parties, this matter is taken up for final hearing.
2. Heard learned senior advocate Mr. Devang Nanavati with learned advocate Mr. Harshadray A. Dave for petitioner and learned senior advocate Mr. Mehul Shah with learned advocate Mr. Vishal C. Mehta for respondent.
3. By way of present petition, the petitioner has prayed for following reliefs:
b) This Honourable Court be pleased to issue a writ of mandamus or certiorari or in the nature of mandamus or certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned Order dated 1st December 2023 produced at Annexure A, passed by the District Court, Ahmedabad (Rural) in Civil Misc. Appeal Number 10 of 2023 and declare the same to be null and void and further be pleased to pass consequential orders;
c) Pending the admission and final disposal of this petition, this Honourable Court be pleased to stay the execution and implementation of the impugned Order dated 1st December 2023 produced at Annexure A, passed by the District Court, Ahmedabad (Rural) in Civil Misc. Appeal Number 10 of 2023;
d) Pending the admission and final disposal of this petition, this Honourable Court be pleased to direct the parties to maintain status quo with respect to the suit properties;
e) This Honourable Court be pleased to grant ad-interim relief in terms of para- 7 sub-para- c) and d);
f) xxx...”
4. The facts of the case are summarized below:-
4.1 The present petitioner filed a Regular Civil Suit No.133 of 2022 before the learned 4th Additional Civil Judge, Ahmedabad (Rural) for the reliefs of declaration and permanent injunction, the defendant appeared and filed his written statement. The petitioner and the respondent are the real brothers. The petitioner stayed at the United States of America and used to send money to the respondent for purchasing the residential and business properties in the City of Ahmedabad. The petitioner opened NRI Account with the Bank of India at Gandhinagar. In the said account, amount was being deposited by the petitioner. The petitioner also used to send financial help to the respondent as the respondent was serving in social bank on a meager salary. The petitioner intended to purchase property at Ahmedabad and appointed the respondent as a power of attorney holder for purchasing the property at Ahmedabad. The petitioner paid the entire sale consideration without the consent and the knowledge of petitioner and executed a sale deed on 16/11/2002 in the joint names of the petitioner and the respondent for the property land bearing Survey No.572 admeasuring 5261 Sq. Mts. situated at Village Sarkhej of Taluka Vejalpur of District Ahmedabad. The said property is known as “Kadri Party Plot” situated at Final Plot Number 18 of TPS No.85 opposite Amber Tower. The sale consideration was paid through the said NRI Account. Another property bearing Plot No.30 admeasuring 811 Square Yards situated at Samir Vihar Society situated at Survey No.28 Hissa No.1 as well as Hissa No.2 situated at Village Maktampura, Taluka City of District Ahmedabad upon which, a construction of ground floor and first floor was existing, was purchased vide registered sale deed dated 06/03/2004 in the names of petitioner and respondent jointly. The consideration was paid by the petitioner. Petitioner thereafter came to Ahmedabad on 04/12/2009 and developed the property being “Kadri Party Plot” in his own name, after obtaining permission in his name. The respondent was permitted to occupy the ground floor of the said property as a care taker of the said premises of the petitioner.
4.2 The respondent filed Special Civil Suit No.110/2021 for the partition and for the share in the income of the said party plot and also sought declaration as to the title and the possession of the bungalow at Samir Vihar Society. Thereafter, the petitioner filed the R
The main legal point established in the judgment is the court's authority to restrain a party from alienating properties during the pendency of a civil suit, based on the principles of prima facie ca....
Civil court jurisdiction not barred under SARFAESI for coparcener's (non-borrower) partition suit on ancestral property; appellate court may correct trial court's perverse injunction refusal; post-in....
The main legal point established in the judgment is that the suppression of material facts and the failure to establish a prima facie case for securing a temporary injunction can lead to the quashing....
The court held that a claim for property belonging to a joint Hindu family is not barred as benami under the Prohibition of Benami Property Transactions Act when purchased with family funds, requirin....
Co-owners cannot claim possession of undivided shares without partition by metes and bounds. Rights to undivided interests can only be enforced through a suit for partition.
A suit claiming rights in property cannot be dismissed at the threshold without a trial based on arguments of benami ownership as these require evidence to substantiate claims.
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