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Judgment
M.D. Shah, J.—This petition under Art. 226 of the Constitution of India challenges judgment and order dated 29-3-2012 passed by the
learned Principal District Court, Banaskantha at Palanpur in Misc. Civil Appeal No. 31 of 2011 whereby order dated 30-9-2011 passed below
application Exh. 5 in Regular Civil Suit No. 142 of 2009 by learned Principal Senior Civil Judge, Palanpur, granting ad-interim injunction was set
aside. Facts in short as arising from the present petition are that a suit being Regular Civil Suit No. 142 of 2009 was filed by the petitioners-original
plaintiffs for a declaration and permanent injunction that land bearing Revenue Survey No. 1047/1/p/3 (old No. 10471) of Moje Palanpur Kasba
be declared as undivided ancestral joint property of the plaintiffs as well as defendants and that the mutation of Revenue Entry No. 1020 dated 21-
4-2009 and certified by the Deputy Mamlatdar on 18-6-2009 is illegal. Along with the suit, plaintiffs also filed an application at Exh. 5 praying for
interim injunction restraining the defendants from transferring, selling, mortgaging or creating any third party right in any manner. The trial Court
granted ad-interim injunction on 23-11-2009. The defendants filed their written statement at Exh. 30. The plaintiffs also filed rejoinder at Exh. 35.
The trial vide order dated 10-5-2010 allowed the application at Exh. 5. Being aggrieved by the same the defendants preferred Misc. Civil Appeal
No. 12 of 2010 before the District Court. The District Court considering the materials placed before it remanded the matter for fresh hearing and
disposal vide order dated 12-7-2011. Thereafter, the petitioners filed an application Exh. 77 before the trial Court on 29-8-2011 praying that the
original banakhat in possession of the petitioners may be sent for opinion of handwriting expert of F.S.L., which was opposed by the defendants
by written reply Exh. 82 contending inter alia that stage of evidence has not come yet. Although, said application Exh. 77 is pending, the trial Court
passed order on 30-9-2011 at Exh. 5 observing that opinion of handwriting expert and other additional materials are subject to further evidence
and after affording opportunity of fresh hearing confirmed the order dated 10-5-2010 passed below Exh. 5. The respondents herein challenged the
said order dated 30-9-2011 by way of Misc. Civil Appeal No. 31 of 2011 before the District Court. Said appeal was allowed and order dated
30-9-2011 passed below Exh. 5 was quashed and set aside vide judgment and order dated 29-3-2012. Hence, the present petition by the
petitioners-original plaintiffs.
Heard learned Senior Advocate, Mr. B.B. Naik with learned Advocate, Mr. Mehul H. Rathod for the petitioners-original plaintiffs and learned
Counsel Mrs. Ketty A. Mehta for learned Advocate, Ms. Archana Acharya for the respondents-original defendants.
Learned Senior Advocate, Mr. Naik submitted that grant or refusal of interim injunction is totally a discretionary exercise of power vested with
the trial Court and once the discretion is exercised by the trial Court, then in normal circumstances, it should not be interfered with by the appellate
Court. He further submitted that by reversing the findings of the trial Court, the appellate Court has gone contrary to the settled legal position. He
further submitted that after remanding the matter by the appellate Court, the trial Court, considering the entire evidence on record along with copy
of documents which were produced later on by the plaintiffs, has granted order of status quo, which findings should not have been interfered with
by the appellate Court. He further submitted that the appellate Court has not dealt with all the findings arrived at by the trial Court whereby the trial
Court has considered the prima facie case and balance of convenience in favour of the plaintiffs and held that if status quo order is granted,
irreparable loss would be caused to the plaintiffs. The appellate Court has committed a grave error by not giving reasons for reversing the order
passed by the trial Court, and therefore, he prayed that the order passed by the appellate Court requires to be quashed and set aside. The
appellate Court mainly relied upon two documents i.e. revenue stamp of 20 paise which is used on the agreement to sell which took place in the
year 1973 while revenue stamp was for the first time introduced by the Government in 1976 and notification of concerned authority in reference to
introduction of revenue stamp which was placed on record. He further submitted that as per the findings of the trial Court, whether 20 paise
revenue stamp was in existence in 1973 or not or was it introduced for the first time in 1976 is a question which can be decided only after
recording of evidence. The appellate Court has not considered this fact and by that committed error in reversing the order passed by the trial
Court. He further submitted that the letter relied on by the present respondents does not specifically disclose that 20 paise revenue stamp was
introduced for the first time only in 1976. The appellate Court grossly erred in reversing the view of the trial Court that the opinion of handwriting
expert produced at Mark 70/3 is a matter of evidence which can be decided at the end of trial, without there being any material before it. The
appellate Court also erred in relying on the opinion of private handwriting expert produced at Mark 70/3 by the respondents which was based on
the photocopy of documents wherein it was opined that in the banakhat of 1973 at Mark 41/1, signatures of Mr. Ibrahim Noormohmad (witness)
and Mr. Hirabhai Raichandbhai (purchaser) are ingenuine while signatures of Mr. Rasul Changwadis (seller) and Mr. Laxmichand Hirabhai and
Mr. Samalbhai Gokalbhai are genuine. He pointed out that in Mark 70/3, signatures of two persons, who passed away, were opined as being
doubtful whereas there were no other original documents to show that those two dead persons'' signatures were sent to handwriting experts
opinion for comparison, and therefore, the findings of the appellate Court are erroneous. He further submitted that there are many properties which
are still running in the name of joint family property, and therefore, it is to be presumed that the property standing in the name of Virchandbhai was
purchased as a joint H.U.F. property. He further submitted that the appellate Court also erred in appreciating the fact that if third party rights are
created by the defendants or the land is transferred in any manner, the entire suit of the petitioners would become infructuous even if the petitioners
succeed in the suit. It is, therefore, requested that the impugned order passed by the appellate Court requires to be quashed and set aside and this
petition requires to be allowed. In this connection, he relied on the following reported decisions:
(i) State of Tamil Nadu Vs. S. Kumaraswami and Others,
(ii) Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others,
(iii) S.V.R. Mudaliar (Dead) by Lrs. and Others Vs. Rajabu F. Buhari (Mrs) (Dead) by Lrs. and Others,
(iv) Sree Jain Swetambar Terapanthi Vid.(S) Vs. Phundan Singh and Others,
(v) Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass,
(vi) Dhariwal Industries Ltd. and Another Vs. M.S.S. Food Products,
(vii) Chinthamani Ammal Vs. Nandagopal Gounder and Another,
(viii) M. Venkataramana Hebbar (D) by L.Rs. Vs. M. Rajagopal Hebbar and Others,
(ix) Makhan Singh (D) by Lrs. Vs. Kulwant Singh, and
(x) Skyline Education Institute (Pvt.) Ltd. Vs. S.L. Vaswani and Another,
Mrs. Ketty Mehta, learned Counsel for the respondents submitted that the banakhat dated 2-7-1973 is forged and fabricated in view of the fact
that stamp of 20 paise affixed at the bottom of the receipt came into effect only from 1-6-1976, and therefore, there was no question of affixing
stamp of 20 paise in 1973 when said 20 paise stamp was not in existence. She further submitted that as per the said banakhat, father of petitioner
was given possession of the suit land in 1973 itself. However, according to her, Rasulbhai, who is the original owner, mortgaged the suit land on
taking loan of Rs. 5,000/- from Union Bank of India and when it was repaid, land was released from mortgage, which facts are reflected from
Marks 70/6 to 70/7 clearly suggesting that said banakhat is forged and fabricated. She further submitted that when the signatures appearing in the
said banakhat were sent for opinion of hand-writing expert as being doubtful, it was opined that signatures do not match and appear to be forged.
She further submitted that the relief sought in Paragraphs 4 and 6(A) vide amendment cannot be raised at this stage challenging order passed
below Exh. 5.
Mrs. Mehta further submitted that entry in the name of Virchandbhai was mutated in 1982 and so long as Virchandbhai was alive, said entry
was not challenged by present petitioners-original plaintiffs, however, after the death of Virchandbhai, when present respondents-original
defendants being legal heirs of Virchandbhai made application to enter their names in the revenue record, the plaintiffs raised objection at a very
belated stage and so also, plaintiffs are not entitled to get any kind of relief of injunction. She further submitted that deceased Virchandbhai was the
youngest son, and therefore, the story put forward by the plaintiffs that the property which was running in the name of Virchandbhai was purchased
as a property of H.U.F. cannot be believed, as according to her, normally the property is purchased in the name of eldest member of the family
while Virchandbhai was the youngest son. She further submitted that sometimes properties may be running in the name of joint family and some
properties may be self-acquired property of the family, and therefore, it could not be said that as other properties running in the name of joint
family are still there, property purchased in the name of Virchandbhai was of H.U.F. property, and hence, the submission of Mr. Naik on that
count should not be believed. She, therefore, urged to dismiss the present petition.
This Court has gone through both the orders passed by the trial Court below injunction application as well as the order passed by the appellate
Court.
It is pertinent to note that plaintiffs'' claim is that they have a right over the suit property as being co-owners of H.U.F. property. It is also to be
noted that defendants are not absolute owners of the property, and therefore, have no right to transfer the property.
In support of the case of the plaintiffs, plaintiffs are relying mainly upon the document which is placed on record i.e. copy of agreement to sell
dated 2-7-1973 (Mark 41/1) and tried to establish that said suit property was purchased by deceased Hirabhai, and therefore, this property is a
joint family property.
The appellate Court, after minutely perusing the documents, rightly came to the conclusion that the document is suspicious and does not inspire
confidence, and therefore, in the opinion of this Court, no error is committed by the appellate Court. In spite of the fact that this document speaks
volume about the conduct of the plaintiffs, the trial Court has committed error in holding that without recording the evidence, this document could
not be tested, and therefore, prima facie case is in favour of the plaintiffs.
It is to be noted that suit land was mortgaged at the time when Rasulbhai borrowed money from Union Bank of India and when the amount
was repaid, suit land was released from mortgage. It is further to be noted that in the suit which was filed, there was no mention about the
agreement to sell which took place in 1973 with the plaintiffs and subsequently it was produced. It is further to be noted that nothing is mentioned
regarding the agreement to sell which is alleged to have been taken place between the deceased Hirabhai and Rasulbhai in the registered sale-deed
which took place in the year 1980. No document is produced by the plaintiffs which prima facie shows that the disputed suit property is a joint
family property or it was purchased in the name of Virchandbhai from the fund of H.U.F.
This Court agrees with the submission of Mrs. Mehta that many a times, it so happens that some properties are running in the names of
members of joint family and some properties are running in individual names, who purchased the properties from their own source of income.
There is no substance in the argument of learned Senior Advocate, Mr. Naik, that defendants failed to establish as to from which source of
income the defendants have purchased the said property.
It is a basic principle of law that when suit is filed by the plaintiffs, burden is on the plaintiffs to establish that prima facie case is in their favour
and if injunction is not granted, irreparable loss would be caused to the plaintiffs. There is nothing on record to indicate that although deceased
Virchandbhai was the youngest member of the family, property was purchased in his name. Although entry in the name of Virchandbhai was
mutated in the revenue record before many years in 1982, till Virchandbhai died on 22-12-2008, no attempts were made to mutate the disputed
property in the name of the plaintiffs. In the opinion of this Court, the only evidence which is produced by the plaintiffs does not inspire confidence
and is prima facie found to be ingenuine. When the appellate Court has minutely verified this document and come to the conclusion that plaintiffs
have no prima facie case, then in the opinion of this Court, no error is committed by the appellate Court.
It is very difficult to agree with the submission of Mr. Naik that at this juncture, it could not be decided whether stamp of 20 paise was
introduced for the first time in 1976 or 1973 as no specific opinion has been given by the competent authority in this regard.
However, considering the letter issued by the competent authority, whether revenue stamp of 20 paise was introduced by the competent
authority in 1976 or whether prima facie it seems that this document is executed in 1973 or is a doubtful or suspicious document would not be
opined by this Court, however, when the appellate Court has minutely verified and came to the conclusion that this document is not trustworthy
and does not inspire confidence, then, on the basis of this document, plaintiffs are not entitled to any relief.
As far as the reliance placed by the learned Senior Advocate, Mr. B.B. Naik, on the reported decisions are concerned, it is to be noted that
many of those decisions are rendered at the end of trial, however, present case is at the stage of deciding Exh. 5 application and hence, many of
those decisions are not applicable to the present case. Even otherwise also, facts of the decisions relied on by learned Senior Advocate, Mr. Naik,
are different from the case on hand, and therefore, the petitioners are not entitled to any benefit of those decisions. Under the circumstances, this
Court is of the opinion that this petition requires to be dismissed and is accordingly dismissed. Status quo granted earlier stands vacated.
FURTHER ORDER
After pronouncement of this judgment, learned Advocate, Mr. B.B. Naik, sought to continue the status quo granted earlier for a period of six
weeks.
Considering the facts and circumstances of the case, interim relief granted by this Court vide order dated 26-4-2012 passed in this matter will
continue for a period of six weeks.