BHAVINBHAI BHAILALBHAI PATEL vs. ASHOKBHAI KANTILAL KAPADIYA

C/SCA/10841/2019 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 10841 of 2019 ========================================================== BHAVINBHAI BHAILALBHAI PATEL Versus ASHOKBHAI KANTILAL KAPADIYA ========================================================== Appearance: MR KUNAL NAIK with MR UTSAV P PARIKH(8223) for the Petitioners VIVAN T SHAH(7947) for the Petitioner(s) No. 1,2,3,4 for the Respondent(s) No. 1,10,2,3,4,5,6,7,8,9 ========================================================== CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

Date : 25/06/2019

ORAL ORDER 1. Present petitioners have invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for seeking following reliefs:- (A) YOUR LORDSHIPS may be pleased to admit and allow the present petition. (B) YOUR LORDSHIPS may be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ order or direction quashing and setting aside the orders dated 8.10.2015 passed below application at Exh.5 in Regular Civil Suit No.219 of 2014 and the Order passed by the Ld. Appellate Court in Miscellaneous Civil Application No.45 of 2015 dated 10.8.2018. (C) During the pendency and final adjudication of the subject suit, YOUR LORDSHIPS may be pleased to direct the Respondent Nos.1 to 8 to maintain status quo of the suit properties with regard to its nature, title and interest. (D) During the pendency and final adjudication of the present petition, YOUR LORDSHIPS may be pleased to direct the Respondent Nos.1 to 8 to maintain status quo of the suit properties with regard to its nature, title and interest. (E) YOUR LORDSHIPS may be pleased to grant ex-parte ad interim relief in terms of paragraph 10(B), 10(C) & 10(D) above. (F) …......” Page 1 of 12

C/SCA/10841/2019 ORDER 2. The background of facts stated by the petitioners is that the petitioners have filed Regular Civil Suit No.219 of 2014 for seeking partition of co-parcenery property, being land bearing Revenue Survey/ Block No.70 lying and situated at village Vaddalana, Taluka Bharuch, District Bharuch and land bearing Survey / Block No.226 situated in the same village and the respondent Nos.1 to 4 have allegedly purchased one of the suit properties, being Revenue Survey No.226, whereas the respondent Nos.5 to 8 are co-parceners of the suit properties. While seeking partition by way of the present suit, the petitioners have also filed an injunction application under Order 39 Rule 1 and 2 of the Code of Civil Procedure inter alia praying to restrain the respondents from further transferring or alienating the suit property during pendency of the suit and the said application Exh.5 came to be rejected by learned Judge vide order dated 8.10.2015. Being aggrieved by and dissatisfied with the said order, the petitioners have preferred further appeal before the District Court, being Misc. Civil Appeal No.45 of 2015. But, according to the petitioners, the same is also rejected vide order dated 10.8.2018 and by raising multiple contentions, the petitioners have invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for assailing both the concurrent orders passed by the Courts below. 3. Learned advocate Mr. Kunal Naik appearing with Mr. Utsav Parikh has vehemently contended that learned Trial Court as well as the Appellate Court have not considered in true sense that the property in question is undisputed a co-parcenery property. The Courts below have also misread the pleadings as well as the material led before the Court. On the contrary, it is undisputedly clear from the revenue record entries that the grandfather’s name is very much reflected. It is only when the income tax notice came to be received, it was found by the petitioners that the transaction has taken place with the respondents in collusion with the other co- Page 2 of 12

C/SCA/10841/2019 ORDER parceners. It has further been submitted that even if the respondent purchasers were not aware about the fact of the property being co- parcenery, the principle of 'Buyer Beware' will apply and they cannot claim to be a bonafide purchasers. It has further been contended that on the contrary, the respondents, being co- parceners, at the best have share in the property and cannot alienate the property in its entirety and this fraud being practiced upon the petitioners, further alienation should not take place, which may turn out to be in multiple litigations amongst the parties and as such, by relying upon the decision delivered by the Apex Court, in the case of Shyam Narayan Prasad Vs. Krishna Prasad and others reported in (2018)7 SCC 646, a request is made not to allow the impugned orders to sustain in the eye of law. Mr. Naik has further submitted that the Trial Court has completely overlooked the revenue entries which are having a fiscal value as well. The name of the grandfather Ranchhodbhai, since reflecting, could not have been overlooked by the Courts below. Resultantly, the findings arrived at by the Courts below are perverse, which call for interference of this Court. It has further been contended that the reasons which are assigned while passing the orders are not sufficient enough to sustain or support the conclusion and the right of a co-parcener is not properly construed by the Courts below. Resultantly, till final disposal of the suit proceedings, the relief prayed for deserves to be granted. Learned advocate has then requested to expedite the suit and till then, at least, direct the parties to maintain the status-quo in the alternative form. No other submissions have been made. 4. Having heard learned advocate appearing for the petitioners and having gone through the impugned order, it clearly transpires that here is a case in which not only the material at length and pleadings have been examined by the Trial Court but the said exercise has also not been done by the Appellate Court as well. As a result of this, it is not possible for this Court to conclude that the Page 3 of 12

C/SCA/10841/2019 ORDER findings arrived at are perverse to the record. In fact, on proper appreciation of the material on record, by assigning proper reasons, the decision is taken and hence, reflects no material irregularity. Resultantly, such concurrent findings of fact deserve no interference. 5. Now, to come to this conclusion, a bare look at the material on record, vis-a-vis the conclusion, clearly indicates that Mark 3/1 is a registered sale deed with respect to Survey No.226 and the same has been sold with possession to the defendant Nos.1 to 4. Related to this transaction, even revenue entries have also been effected in the Village Form No.7/12, which entries have also been considered by the Courts below. It has further been examined that after realizing full consideration to the extract of Rs.70 lac, the transaction has been finalized and the registered sale transaction took place on 20.10.2010. After hearing at length and after considering the relevant material, both the Courts have concurrently found but the reasons which are assigned and ultimate conclusion of the Trial Court since elaborate, the Court deems it proper to reproduce the same hereinafter:- (10) I have heard and read the arguments submitted by ld. Advocates and I have gone through the documentary evidence on record. The following aspects are not in dispute. 1. Defendant no.5 and 6 executed registered sale deed in favour of defendant no.1 to 4 and on the basis of sale deed, entry no.2548 was mutated and since then the suit property is running in the name of defendant no.1 to 4. (11) Considering whatever documents produced on record and admitted facts of this case, it is very clear that defendant no.1 namely Ranchhodbhai Bhagwanbhai was the owner of the suit property bearing survey no.226 and he has entered the name of his wife Kamlaben Ranchhodbhai as guardian of their two minor sons namely Bhailalbhai Ranchhodbhai and Rameshbhai Ranchhodbhai by mutual distribution by virtue of entry no.1146, dt. 26.05.1970 which is produced at mark- 3/11/1. Further, document produced at mark-3/11/7 is the entry of conversion of suit land into non-agricultural land by virtue of an order no.Gi Pam./ mama/ Bhumi/n.a./10-11 dt. 16.09.10 of District Development Officer, bharuch and at Page 4 of 12

C/SCA/10841/2019 ORDER mark-3/1 the copy of registered sale deed is produced. The say of the plaintiffs is that as the suit property is the ancestral property and they are co-owners of the suit property, it could not be sold without the consent of all co- owners. On perusing the document produced at mark 3/11/1, it appears that the suit property was running in the name of defendant no.5 and 6 in the revenue record since 1970 and perusing the document at mark-3/1, which is the copy of registered sale deed, it clearly appears that the said sale deed was administered by defendant no.5 and 6 in favour of defendant no.1-4 on consideration of Rs.70,00,000/- and that too after realizing the amount of full consideration met with prevailing market value and the possession of the suit property was also handed over to the plaintiff at that time and the said sale deed was registered with sub-registrar office, Bharuch at no.11065 dt. 20.10.10 according to which the entry no.2548, herein produced at mark 4/11/8 was made in the revenue record on dt. 24.05.2011 and since then the suit property is running in the name of defendant no.1-4. (12) It is required to note that here that, in the present suit, by filing written statement it is averred by defendant no.5 and 6 that the property is sold to defendant no.1 to 4 with a rider that they are not an absolute owner of the suit land, that clearly shows that plaintiffs and defendant no.5 and 6 are trying to help each other, otherwise there was no question on the part of defendant no.5 and 6 for taking such stand, especially when there is no such recital in the registered sale deed executed in favour of defendant no.1 to 4. Aforesaid circumstances, clearly indicates that the plaintiffs, being relative of defendant no.5 to 8, have joined hands with them and all of them have tried to disturb the transaction, which had taken place by way of registered sale deed in favour of defendant no.1 to 4. (13) If the stand taken by defendant no.5 and 6 is genuine, naturally, the defendant no.5 and 6 would have mentioned said fact in the sale deed executed in favour of defendant no.1 to 4, which is a registered document. However, there is no such reference and, therefore, this theory is got up subsequently by which defendant no.5 and 6 have taken aforesaid stand. 6. Now, the aforesaid conclusion has been prima facie found by the Court not to grant interim relief as prayed for and further a registered sale deed holder normally is not to be injuncted from enjoyment of his lawful property. Keeping that circumstances in mind, the Trial Court on 8.10.2015 has passed a detailed order rejecting the request of Exh.5. Now, this very observation and conclusion is made the subject matter of appeal. The Appellate Page 5 of 12

C/SCA/10841/2019 ORDER Court has also arrived at a detailed conclusion and having found that in a suit seeking partition, there is no relief found for setting aside the sale transaction, itself is a conduct to play smart with the Court in drafting a plaint and having found such circumstance, even the Appellate Court has also thought it fit not to disturb the detailed conclusion arrived by the Court below. Hence, here is a case in which both the Courts below have thought it fit not to grant any injunction against the registered sale deed holders. Hence, the discretion arrived at is not possible to be construed as perverse in any form. 7. In the aforesaid situation and in view of the settled position of law propounded by the Apex Court in a decision, in the case of Dalpat Kumar and another Vs. Prahlad Singh and others reported in AIR 1993 SC 276 that there is clear distinction between the prima facie case and prima facie title and both cannot be confused and by elaborating such concept, injunction is refused in that particular. Relevant observations contained in para 5 and 6 of the said decision, since relevant, the Court thought it fit to reproduce the same hereinafter:- 5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting Page 6 of 12

C/SCA/10841/2019 ORDER or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject- matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. 6. Undoubtedly, in a suit seeking to set aside the decree, the subject-matter in the earlier suit, though became final, the Court would in an appropriate case grant ad interim injunction when the party seeks to set aside the decree on the ground of fraud pleaded in the suit or for want of jurisdiction in the Court which passed the decree. But the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injuries to either party and whether the plaintiff could be adequately compensated if injunction is refused. This case demonstrates (we are not expressing any opinion on the plea of fraud or their relative merits in the case or the validity of the decree impugned), suffice to state that the conduct of the respondent militates against the bona fides . At present there is a sale deed executed by the Court in favour of the first appellant. If ultimately the respondent succeeds at the trial. They can be adequately compensated by awarding damages for use and occupation from the date of dispossession till date of restitution. Repeatedly the Civil Court and the High Court refused injunction pending proceedings. For any acts of damage, if attempted to make, to the property, or done, appropriate direction could be taken in the suit. If any alienation is made it would be subject to doctrine of lis pendence under S. 52 of the Transfer of Property Act. The High Court without adverting to any of these material circumstances held that balance of convenience lies in favour of granting injunction with the following observations' "keeping in mind the history, various facts which have been brought to my notice, and looking to the balance of convenience and irreparable loss, I think it will be in the interest of justice to allow these appeals and grant temporary injunction that the appellants may not be dispossessed from the suit property". The phrases "prima facie case"; "balance of convenience" and "'irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success. Page 7 of 12

C/SCA/10841/2019 ORDER 8. In view of the said decision, this Court of the considered opinion that a writ jurisdiction in a situation like this, is not possible to be exercised. Hence, no case is made out to call for any interference. Additionally, the judgment which is tried to be relied by learned advocate for the petitioners on the issue of Joint Hindu Family, relevant observations contained in para 11 and 12 are no- doubt salutary but are to be restricted to such particular background of facts of that case. Having gone through at length the present case on hand, it is difficult for this Court to apply such principle in a different background of facts. Hence, the said judgment is of no avail to the petitioners. 9. Additionally, the Court keeping in mind the well defined scope of writ jurisdiction is also unable to exercise the same in the present case and for that purpose, the Court has an assistance of few decisions, some of which are reproduced hereinafter:- (1) In the case of Sameer Suresh Gupta TR PA holder Vs. Rahul Kumar Agarwal reported in (2013)9 SCC 374, the Apex Court has held and observed in para 6 and 7 as under:- “6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles: "(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No.46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. Page 8 of 12

C/SCA/10841/2019 ORDER (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (I) without jurisdiction- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:(I) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care,caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical Page 9 of 12

C/SCA/10841/2019 ORDER character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case." 7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010)8 SCC 329, and it was held: "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority". (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not Page 10 of 12

C/SCA/10841/2019 ORDER declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be Page 11 of 12

C/SCA/10841/2019 ORDER counterproductive and will divest this extraordinary power of its strength and vitality." (2) In the case of Mohd. Yunus v. Mohd. Mustaqim and others reported in AIR 1984 SC 38, the Apex Court has held and observed in para 7 as under:- 7. The supervisory Jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision. 10. In view of the aforesaid situation, which is prevailing, this Court is of the opinion that no case is made out by the petitioners to call for any interference. Resultantly, the petition being devoid of merit, stands dismissed with no order as to costs. (A.J. SHASTRI, J) OMKAR Page 12 of 12